Tomorrow, the Health & Human Services Committee of the New Mexico House of Representatives will hold a hearing for HB 133, a bill that would jeopardize the fundamental fairness of sexual misconduct proceedings at colleges and universities in the state of New Mexico. If adopted, the bill would require institutions of higher education who receive financial assistance from the state to:
[A]dopt detailed, complainant-centered policies and procedures for the investigation of and disciplinary procedures addressing allegations of sexual assault, domestic violence, dating violence, and harassment or stalking involving a student, faculty member, employee, contractor, or regent both on and off campus.
Among the problematic language is the requirement for colleges and universities to adopt “complainant-centered” policies, a term which is not defined in the bill. Because Title IX requires institutional impartiality during investigations and adjudications of campus sexual misconduct, any statutory language requiring institutions to adopt policies that might tend to favor a complainant over a respondent would almost certainly violate the federal statute.
Instead of legislating complainant-centered policies, state legislators should ensure that all students in a campus sexual misconduct proceedings are treated fairly and with respect. State laws should ensure university policies provide students clear instructions on how to file complaints. Additionally, policies must guarantee that all complaints which, if true, would violate campus’ sexual misconduct policies, will be thoroughly reviewed and investigated.
HB 133 would further require that institutions of higher education in New Mexico provide “trauma-informed” training for campus officials involved in investigating and adjudicating sexual misconduct complaints, including fact-finders. While it is certainly unobjectionable for institutions to conduct trainings with first responders in how trauma may impact complainants so that contact is made in a manner that elicits vital information without discouraging complainants from coming forward, FIRE is worried about how that training may negatively affect the investigation and adjudication of campus sexual assault complaints. For example, Harvard Law School professor Janet Halley wrote about the bias inherent in the training materials on the effect of trauma used in 2014 at her institution, by writing that:
It is 100% aimed to convince [staff handling sexual misconduct claims] to believe complainants, precisely when they seem unreliable and incoherent. Without disputing the importance of the insights included in this section of the training, one can ask: precisely what do they prove? Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted. [Emphasis in original.]
The bill would also require that colleges and universities adopt an “affirmative consent standard in the determination of whether consent was given by both parties.” HB 133 defines affirmative consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” FIRE has criticized affirmative consent policies in the past because:
[U]nder most affirmative consent regimes, a student who engages in consensual sex may be found guilty of sexual assault simply by being unable to prove that he or she obtained unambiguous consent to every sexaul activity throughout a sexual encounter.
Worse still, it is difficult, absent some kind of recording, for an accused student to be able to demonstrate that he or she received a verbal or other explicit “yes” for a sexual encounter even when consent was, in fact, given. Because many policies require the indications of consent during sexual activity to be “continuous,” or that explicit consent be given for every stage of every sexual encounter (though what constitutes a “stage” is seldom defined), even a written acknowledgment that a person wishes to have sex, such as a text message or the use of a smartphone application to record consent, may not serve as sufficient proof that a party received consent to sexual activity. This leaves those accused of sexual misconduct under “affirmative consent” policies with no way to prove that they actually obtained consent from their partner or partners. As one court put it, under an affirmative consent policy, “the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” Mock v. University of Tennessee at Chattanooga, No. 14-1687-II (Tenn. Ch. Ct. Aug. 10, 2015).
HB 133 would also require that institutions of higher education in the state adopt the “preponderance of the evidence” standard when adjudicating sexual misconduct complaints. Given the high stakes on the outcome of these disciplinary proceedings, FIRE does not think that the preponderance of the evidence standard is appropriate. Institutions should instead be using the “clear and convincing” evidence standard, an intermediate standard is appropriate for these types of disputes. As the United States Supreme Court explained in Addington v. Texas:
One typical use of [this] standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money. . . . Similarly, this Court has used the ‘clear, unequivocal and convincing’ standard of proof to protect particularly important individual interests in various civil cases.
The bill has yet another potential problem: HB 133 adopts the definition of harassment in the state’s penal code. To the extent that this definition would be applied against speech in the educational setting, it would be inconsistent with the student-on-student harassment definition set forth by the United States Supreme Court in Davis v. Monroe County Board of Education.
If enacted, HB 133 would represent a significant blow to due process protections at colleges and universities in the state of New Mexico. FIRE strongly opposes the bill, and we would be happy to work with legislators in New Mexico to craft a bill that would improve the quality and fairness of such proceedings in the state.