Experts React to the Campus Sex Assault Bills

July 31, 2014

By Robby Soave at Reason Online

Capitol Hill hearings on the campus sexual assault issue finally produced some legislation this week. Sens. Claire McCaskill (D-Missouri), Marco Rubio (R-Florida), and others of both parties unveiled the Campus Accountability and Safety Act yesterday. Sen. Barbara Boxer (D-California) introduced her own bill, the Survivor Outreach and Support Campus Act, Thursday.

What’s in the bills? Some reasonable provisions, such as new requirements that college administrators work alongside law enforcement to resolve sexual assault instances. This is a good thing: Rape is a crime and it should be handled by the police. As the Foundation for Individual Rights in Education notes of the CASA:

Perhaps most promisingly, the Act would require institutions to enter into agreements with local law enforcement agencies to “clearly delineate responsibilities and share information” regarding crimes like sexual assault. Sexual assault should be understood and addressed as the felony it is, whether it occurs on or off campus. Mandating a formal relationship with local law enforcement is a small but necessary step towards ensuring that the expertise, experience, and resources of the criminal justice system are brought to bear on these investigations.

However, the bills still contain plenty that would trouble civil libertarians. KC Johnson of Minding the Campus raises some questions about the CASA’s presumption that accusers are truthful:

Subsection 4 of the law enforcement section of the bill, however, contains a deeply troubling provision, requiring colleges to develop “a method of sharing [with law enforcement] information about specific crimes, when directed by the victim [emphasis added].” First, at the point in the case covered by this subsection, there is no “victim”—there’s an accuser and an accused student. McCaskill’s word choice suggests that she and her colleagues believe that an accuser is automatically a “victim,” thereby abandoning the presumption of innocence for the accused. Second, the provision gives the “victim” authority over whether or not to share information with law enforcement. It’s hard to imagine any accuser would “direct” her college to share information with police about the “specific crime” of filing a false report, if the college uncovered evidence that the accuser lied.

In fact, neither bill says anything about due process rights for the accused. While Boxer’s bill does call on universities to assign “advocates” to help accusers through the sexual assault adjudication process, it does not extend similar representation to the accused. As FIRE’s Joseph Cohn notes:

Interestingly, the legislation also says that it will be the advocate’s responsibility to “[a]ttend, at the request of the victim of sexual assault, any administrative or institution-based adjudication proceeding related to such assault as an advocate for the victim.” FIRE has long urged lawmakers to ensure that both student complainants and the accused enjoy the right to the advocacy of an attorney during campus adjudication proceedings. This bill does not do that.

More from Reason on campus sexual assault here.