Campus Civil Liberties Group Cautiously Optimistic On Assault Bill

August 1, 2014

By Blake Neff at The Daily Caller

A bipartisan bill introduced in both houses of Congress that seeks to curb on-campus sexual assault is drawing cautious praise even from the nation’s premier campus civil liberties group.

The Campus Accountability and Safety Act (CASA), created after several months of work led by Missouri Democratic Sen. Claire McCaskill was introduced to the Senate on Wednesday, with a House companion bill being introduced Thursday. The bill seeks to address what activists call an epidemic of sexual assault on the nation’s college campuses, with as many as one in five women sexually assaulted before leaving school. The bill would require colleges to implement uniform practices to address sexual assault.

The Foundation for Individual Rights in Education (FIRE), a leading advocate for the civil liberties of students and educators, has long been wary of many efforts by both government and administrators to fight sexual assault. The group has raised flags about measures such as reducing the standard of evidence required to find students liable for sex offenses, and has also been broadly critical of relying on schools rather than police forces to handle sexual assault.

However, when approached about the bill, FIRE was cautiously optimistic, commending its restraint and offering more praise than criticism for the bill.

“Overall, I think the bill is not objectionable,” FIRE senior vice president Robert Shibley told The Daily Caller News Foundation. Shibley praised many of the bill’s core provisions as improvements to the current way sexual assault is handled on campus.

For instance, requiring that colleges use an identical adjudication process for all assault accusations rather than allowing student-athletes to be investigated by the athletic department was a “no-brainer,” Shibley said. He also had high praise for parts of the bill that require colleges to craft memorandums of understanding with local law enforcement, in order to both delineate responsibilities and share information. He expressed hope that increased involvement with police would decrease the expectation that colleges try to solve sexual assault on their own.

“Rape is a crime… so to the extent a university is working with law enforcement and we can bring law enforcement to bear on the problem, that’s an improvement,” he said. “We can’t really trust universities to operate a shadow justice system on their own and do it in a competent fashion.”

Joseph Cohn, FIRE’s legislative and policy director, presented more concerns about the bill, but said it was “absolutely” a better piece of legislation than they had feared.

“We think this bill avoided some of the worst paths they could have chosen.” said Cohn. “It could have included provisions that require students to prove their own innocence, like the measure in California.” The California law he referred to is a measure under consideration that would find students liable for sexual assault if they did not obtain affirmative consent from partners prior to each stage of sexual activity.

Cohn warned, however, that the bill was not perfect and FIRE would look at means to improve it, mostly in ways that would provide more due process protections for individuals accused of sexual assault.

One flaw in the bill, Cohn said, is that it repeatedly uses words like “victim” to indicate those who have merely made allegations of sexual assault. Such language, he says, suggests an assumption of guilt and could encourage schools to railroad the accused.

“Schools are already getting a message that they need to crack down on students,” Cohn said, “and the overall structure of this legislation add to this dynamic.”

Another source of pressure, he said, was the new opportunities for fines created by the bill. If passed, the bill would allow schools to be fined up to one percent of their operating budget for every single violation of certain sexual assault-related laws. With individual cases potentially including multiple violations, schools could wind up fearing absolutely ruinous fines, Cohn said, arguing the bill would be improved if it created a maximum overall fine.

Still, Cohn said the bill is friendly enough to FIRE’s interests that it can be worked with and molded into a law the group could enthusiastically support.

“It’s a first draft that opens the door to conversations about this [issue] that we need to have,” Cohn said.