Two More Campus Sexual Assault Bills Introduced, and Neither Addresses Due Process

August 5, 2014

By Ashe Schow at Washington Examiner

Campus sexual assault has become a hot topic in Congress. In addition to the Campus Safety and Accountability Act, which the Washington Examiner reported on last week, two more bills were introduced that fail to address due process rights for those accused of the crime.

The Survivor Outreach and Support Campus Act and the Hold Accountable and Lend Transparency on Campus Sexual Violence Act both build on CASA’s foundation of victim advocacy. They both also fail to mention any protections for the accused and appear to treat anyone who reports a sexual assault as an automatic victim — no matter whether the accusation holds true.

SOS Campus Act

This short bill, introduced by Sen. Barbara Boxer, D-Calif., does take a positive step by requesting universities that receive federal assistance “designate an independent advocate for campus sexual assault prevention and response.” But the bill only requires the advocate to work with the accuser and never mentions working with the accused.

The advocate will be responsible for providing accusers with information about “how to report sexual assault to law enforcement,” medical care and “medical forensic or evidentiary examinations,” the bill states.

The advocate will also provide “crisis intervention counseling and ongoing counseling,” “information on the victim’s rights and referrals to additional support services,” and “information on legal services.”

At no point does the bill require the advocate to provide such services to the accused, meaning they are on their own to figure out how to defend themselves.

The bill promotes reporting of sexual assaults by stipulating that accusers “may not be disciplined, penalized or otherwise retaliated against for reporting such assault to the advocate.”

But what if the accusation turns out to be patently false? At that point, the accused is the victim, and what is his or her recourse?

If campuses promote more reporting – regardless of whether the accusation is true — without any sort of discipline for false reports, how will the problem be solved? How will this not result in more people being accused — branded as rapists — for, say, an ugly breakup and not an actual sexual assault?

The bill also requires that the name of the accuser and any witness on the accuser’s behalf remain confidential, but affords no such protection for the accused. That means campus fliers that identify alleged attackers as “rapists” would be legal as long as the accuser’s name isn’t mentioned. (It should also be noted that just because someone was found “responsible” for violating the campus’ sexual assault policy, doesn’t mean they were in the wrong, as many campuses take the victim’s word as gospel and don’t allow the accused any sort of defense.)

Boxer’s office did not immediately respond to an Examiner request for comment on the legislation.

HALT Campus Sexual Violence Act

HALT, introduced by Reps. Jackie Speier, D-Calif., and Patrick Meehan, R-Pa., aims to “increase transparency and reporting on campus sexual violence.”

As you can imagine, it doesn’t address due process rights for the accused.

This bill focuses mainly on reporting sexual assault statistics and stipulates fines for failure to conduct investigations, but it also creates a “campus sexual violence task force” to develop recommendations for how to support accusers.

The bill calls for colleges to provide “survivor resources, including health care, rape kits, sexual assault nurse examiners and confidential advocates on campus.” Again, nowhere does it mention any kind of services for those accused.

HALT does recommend that colleges establish “best practices” for developing “effective campus sexual violence prevention, investigation and response practices.”

That could be positive, or it could mean “best practices” for ensuring a conviction.

The Foundation for Individual Rights in Education, an organization dedicated to protecting due process at colleges and universities, noted that this bill gives the U.S. Department of Education “broad enforcement powers” over them.

HALT allows the federal agency to “impose a civil penalty” on a university for violating provisions of the bill, “the amount of which shall be determined by the gravity of the violation.” There is no limit to the size of the fine.

“FIRE is not opposed to fines for wrongdoing, but granting [the department] such broad discretion and authority is likely to be troublesome,” wrote Joseph Cohn, legislative and policy director at FIRE. “After all, [the department] has been the architect of new campus rules to address allegations of sexual misconduct that have reduced due process protections by lowering the standard of evidence and reducing opportunities for accused students to cross-examine witnesses.”

Cohn also noted that the Department of Education “has yet to take a single action against a university for violating the rights of an accused student.”

And HALT wouldn’t provide any relief in that area.

A spokesman for Speier did not immediately respond to a request for comment but directed the Examiner to U.S. Department of Education guidance requiring both accusers and accused be allowed representation in any investigation and hearing.