‘Mandatory Reporting’ Hinders Fight Against Sexual Assault, Critics Say

February 19, 2015

By Allie Bidwell at U.S. News

Representatives of nearly 20 student affairs and advocacy groups nationwide are urging state lawmakers to reject pending legislation they say would limit students’ rights and make it harder for colleges to deal with cases of sexual assault.

In an open letter released Thursday, the 19 organizations said “mandatory reporting” bills that force colleges to report incidents of sexual assault to law enforcement would create a conflict for colleges trying to comply with both state and federal law. Other legislation being considered would give students accused of committing sexual assault certain due process rights not available even to victims, such as access to an attorney who can fully participate in campus disciplinary hearings on his or her behalf, the groups said in the letter.

“While we applaud these legislatures’ desire to assist institutions of higher education (“IHEs”) in improving their responses to sexual and other forms of gender-based violence that victimize their students, both groups of bills would actually have the opposite effect from the one intended and make it more difficult for campuses to end this violence and its devastating effects on victims’ lives,” the letter says.

At least three states – New Jersey, Rhode Island and Virginia – are considering legislation to enact mandatory reporting requirements for colleges.

New Jersey State Sen. Peter Barnes, a Democrat who announced a package of sexual assault-related bills in August, said then that requiring colleges to report incidents to law enforcement would “better ensure the involvement of an independent entity, which is beneficial for both the school and the student.”

Such requirements are more commonly in place to protect children who have been victims of sexual assault and may be incapable of reporting the incidents otherwise. Implementing them on college campuses would single out adults, the groups write in their letter, and treat them “legally as children.”

“The fact that those infantilized in this manner are mainly women and girls makes these bills particularly contrary to Title IX’s purposes,” the letter says, referring to a federal law that prohibits sex discrimination on federally funded college campuses.

Forcing college officials to report sexual assault incidents to local law enforcement also could prevent schools from complying with federal law. The Violence Against Women Reauthorization Act of 2013 requires colleges to tell victims of sexual assault (as well as dating violence, domestic violence and stalking) that they have the right to decline to notify law enforcement.

Mandating the reporting of incidents to law enforcement, then, “would negate the student’s right to decline to notify law enforcement of their report,” the groups’ letter states. “Such a conflict would mean that IHEs in applicable states could not comply with both federal and state law.”

The signatories also expressed concern that mandatory reporting requirements would make victims less likely to report sexual assaults at all, preventing them from receiving help from the university. The majority of sexual assaults go unreported, and college students are already less likely than non-students to report them.

The so-called right to counsel bills – under consideration in North Dakota and South Carolina – also would “inject inequality into campus disciplinary proceedings” by giving accused students privileges that victims themselves do not have, the groups claim. Both sides are already allowed to have attorneys advise them, for example, but the attorneys cannot fully participate.

Some proponents of right to counsel provisions, such as the Foundation for Individual Rights in Education, say they’re necessary to protect students wrongly accused of sexual assault. The bills would also allow students found responsible of sexual assault and punished for it to appeal the decision.

But because appeals processes are typically lengthy, it could make it difficult for colleges to remove students found responsible of sexual assault, the groups claim.

“This would seriously diminish a school’s ability not only to protect the rights of student victims but also to prevent violence by sending clear messages to the campus community about the consequences of engaging in violence,” the letter says. “Indeed, these bills would authorize state courts with no particular expertise in [higher education] policy or higher education best practices to trump the decisions of experts in both policies and practices.”