Could A Campus Rape Law Actually Work?

September 15, 2015

By Lizzie Crocker at The Daily Beast 

Advocacy groups are denouncing the Safe Campus Act, which would require students making an accusation of sexual assault to go to the police as well as college authorities.
A bill being considered in the House that would prohibit colleges from punishing students accused of sexual assault without first notifying law enforcement officials has provoked the first major wave of protests from student activists and advocacy groups since the school year began.

The Safe Campus Act, which was introduced in July and revisited last Thursday during a congressional meeting addressing sexual assault on campuses, would provide students with due process protections and ensure that campus tribunals more closely resembled the criminal justice system.

Under the Republican-sponsored legislation, both the accused and the accuser would be able to hire lawyers, and those accused would be able to see evidence and charges against them. Ideally, both parties would benefit from these changes.

The legislative details are still being worked out, but activists and advocacy groups are vehemently opposed to them as they stand.

Kevin Kruger, the president of NASPA (Student Affairs Professionals in Higher Education), said requiring alleged victims to report a sexual assault would create a “chilling effect” for thousands of women, the majority of whom already don’t report their sexual assault to anyone.

“We strongly believe that victims should have the rights to pursue the course of action that’s right for them,” Kruger told The Daily Beast. “They want and need support.”

Proponents of the law agree, and say that activists have misinterpreted the legislative fine print: The law would not force alleged victims to report their sexual assault to anyone. Rather, it would put the burden of responsibility on universities. If alleged victims chose not to involve law enforcement in their cases,universities would not be allowed to pursue disciplinary action against the accused.

“The idea is that law enforcement officials not be left entirely in the dark,” said Joe Cohn, the legislative and policy director for the Foundation for Individual Rights in Education (FIRE).

“Victims-rights advocates who are very disturbed by this provision are not recognizing its limitations to begin with. Mandatory reporting does not take away an accuser’s autonomy because they can still decide not to cooperate with the investigation,” Cohn added.

The bill states that schools would be able to suspend the accused for up to 30 days after notifying law enforcement officials about the allegations “if the student poses an immediate threat to campus safety and student well-being.” If after that period of time the accuser declined to cooperate, then the school would not be able to take further punitive measures against the accused.

Cohn said that he believes the bill was written “too broadly,” and that FIRE is opposed to a portion of the law that would restrict certain non-punitive measures.

“We strongly believe that victims should have the rights to pursue the course of action that’s right for them. They want and need support.”

Cohn has proposed amending the bill so that alleged victims would still have access to counseling and any other remedies and resources currently available on college campuses. He believes victim’s-rights advocates should be pushing to amend the bill as well as opposed to abandoning it entirely.

The bill would make sure that schools played a role in sexual assault cases that “capitalizes on their strengths” instead of asking them to adjudicate cases that they’re not trained to adjudicate, Cohn said. “Title IX will be strengthened by plugging in experts to perform functions that they’re ideally situated to perform.”

Legal experts who are not officially involved with the Safe Campus Act are divided on whether or not the legislation would benefit students and properly address campus sexual assault.

Longtime defense attorney Harvey Silvergate supports the provision because he’s seen campus tribunals fail both the accuser and the accused too many times. “Even though the stakes are very high, victims are better off, accused are better off, and colleges are better off having these cases adjudicated in criminal court,” he said.

But Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, argues that these campus sexual assault cases should be tried on campus.

“I think there’s an overlapping jurisdiction—when you’re talking about a campus in a small community, you can talk about behavior that is beyond the pale in that small community for those four years,” she said. “Whether you follow that through in the larger, non-campus community with consequences is a different issue.”