NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
The original Violence Against Women Act of 1994, penned by then-Senator Joe Biden (D-Del.), allocated money for grant programs to state, local, and Indian tribal governments to
expand protections and services and enhance law enforcement support to female victims of violence. Subsequent reauthorizations expanded protections for immigrant victims of abuse, sexual assault survivors, dating violence victims, and underserved populations.
The law was reauthorized in 2000 and again in 2005, with bipartisan support. This year, however, the Senate and the House can’t seem to agree.
The Democratic-led Senate passed their version of the bill (S. 1925, the Violence Against Women Reauthorization Act of 2011) on April 26 with the help of 15 Republicans. However, the Republican-led House refused to consider that version, and instead passed its own version (H.R. 4970, the Violence Against Women Reauthorization Act of 2012) on May 16.
The main points of contention regarding the Senate version are the provisions to ban discrimination against gay, lesbian, bisexual and transgender victims of domestic violence; increase the number of U visas that are available to illegal immigrants who are victims of domestic abuse; and expand tribal court jurisdiction over non-Indians who commit domestic violence on reservations.
The House version includes none of these provisions. Some Republicans are accusing the Democrats of going too far and of political pandering in an election year, while some Democrats are accusing the Republicans of not going far enough, being anti-women by holding up the bill, or being intransigent on its passage because it was originally Vice President Joe Biden’s bill and he is up for re-election.
Senator Patrick Leahy (D-Vt.), who authored the Senate version with Republican Senator Lisa Murkowski (R-Alaska) as a co-sponsor, stated in a June 12 letter to House Speaker John Boehner (R-Ohio) that "saving the lives of victims of domestic violence should be above politics. Yet politics seem to have gotten in the way…"
Organizations are putting the pressure on. The National Task Force to End Sexual and Domestic Violence Against Women launched a national week of action from June 26 to July 4, calling for Congress to pass a version similar to the Senate version.
The end result from the political maneuvering remains to be seen, as the House and Senate will try to come to some agreement between the two versions in a joint committee. President Obama has threatened to veto the House version, so that version is unlikely to become law.
Provisions Affecting Higher Education
There are provisions in both bills that would affect the way institutions of higher education conduct business in their compliance with VAWA.
One issue concerns the extension of rights to the accused on campus. An amendment to the Senate version, in section 304, calls for "a prompt, fair, and impartial investigation and resolution" to institutional disciplinary action in cases of alleged domestic violence, dating violence, sexual assault, or stalking.
This language takes a step back from the version that was originally passed, which appeared to call for the lowest level of proof in disciplinary proceedings, the "preponderance of the evidence." Certain sectors lobbied for the removal of that language, and the Senate complied.
The Senate version requires officials who conduct institutional disciplinary proceedings to receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking, as well as training for campus law enforcement on these specific issues.
Section 304 of the Senate version amends the Higher Education Act of 1965 to require educational institutions that receive federal aid to publicly disclose incidents of sexual violence; establish procedures for the protection of the confidentiality of crime victims; and disclose disciplinary proceedings.
The Senate version expands the Clery Act by requiring institutions to maintain statistics for the offenses of domestic violence, dating violence, and stalking in addition to those they are already required to maintain.
The Senate version requires a mandatory prevention and education program on domestic violence, dating violence, sexual assault, and stalking for all incoming students, including "culturally appropriate and linguistically accessible" print or electronic materials; training of campus law enforcement personnel to respond effectively to situations involving such incidents; and the development of specific strategies for victims of these offenses for underserved populations on campus.
The House version does not include any such provisions. Instead, the House version establishes a National Center for Campus Public Safety (something which has been proposed and rejected in previous bills), which would do the following:
- Provide education and training for campus public safety agencies as well as their collaborative partners, including campus mental health agencies;
- Promote research to strengthen the safety and security of institutions of higher education;
- Serve as a clearinghouse for the dissemination of information, policies, procedures, and best practices relevant to campus public safety, including off-campus housing safety, the prevention of violence against persons and property, and emergency response and evacuation procedures;
- Develop protocols to prevent and respond to natural and man-made emergencies that pose an immediate threat to the health or safety of the campus community;
- Promote the development and dissemination of effective behavioral threat assessment and management models to prevent campus violence;
- Coordinate campus safety information (including ways to increase off-campus housing safety) and resources available from federal and state agencies, law enforcement agencies, and private and nonprofit organizations;
- Increase cooperation and collaboration in prevention, response, and problem-solving methods among law enforcement, mental health, and other agencies; and
- Develop standardized formats and models for mutual aid agreements and memoranda of understanding between campus security agencies and other public safety organizations and mental health agencies.
- These provisions go beyond violence against women to address general campus safety and security.
Coming Under FIRE
Some of the provisions of both versions have come, quite literally, under "FIRE." The Foundation for Individual Rights in Education (FIRE) has been vocal in making its position known on several aspects. One of the points of contention involves the "double jeopardy" provision of the Senate version.
In this version, colleges must have procedures for both the accused and the victim to appeal the results of the institutional disciplinary proceeding. FIRE maintains that this provision would amount to an accused being subject to a second proceeding if the first doesn’t go the victim’s way.
According to a statement on FIRE’s website on May 31, "The requirement contradicts the principle behind the Fifth Amendment’s prohibition on ‘double jeopardy,’ whereby someone accused of a crime cannot be tried again for the same charge once the original hearing has properly ended in either acquittal or conviction. The House version of VAWA preserves due process protections for students by omitting such a provision."
FIRE does concede that courts of law give appeal rights to both the victim and the accused, but states that educational institution proceedings do not carry the full scope of due process rights as do court proceedings.
FIRE is also against the House’s proposed National Center for Campus Public Safety on the grounds that the "behavioral threat assessment and management models" could potentially go too far in suppressing the rights of those on campus.
Whatever the outcome of this bill, there may be one positive spin on the controversy. Issues of violence against women—in general and in specific populations—have definitely come to the fore, and are receiving more press than if the bill had passed quietly and without fanfare.