As legislatures across the country are trying to grapple with how to best address sexual assaults on college campus, the Mississippi legislature recently moved a particularly disturbing bill out of committee. The bill, HB 1039, is a nightmare from a due process perspective and would go further than even the federal government’s myopic approach.
Here is brief summary of the legislation. First, it would codify the unlawful federal mandate that institutions of higher education use the preponderance of the evidence standard when adjudicating allegations of sexual misconduct on campus. FIRE has long argued that while the preponderance standard (which requires the fact-finder to merely determine that the allegations are 50.01 percent likely to be true) may be appropriate in courts of law and administrative law proceedings with robust procedural protections, it is an insufficient standard when those procedural safeguards are absent. Colleges, after all, don’t typically use the rules of evidence, allow the parties to engage in discovery, have subpoena power, have access to forensic evidence or the ability to analyze it accurately, have legally trained judges presiding, or allow the parties to be represented by legal counsel.
Second, HB 1039 refers to complainants as “survivors” throughout the bill, even in the pre-adjudication context, which undermines the impartiality of the legislation by assuming the guilt of all accused students. Sexual assault is a real problem on campus, but false accusations also occur, and state statutes must not signal to institutions that they are to view accused students as guilty right out of the gate. It’s also worth noting that doing so violates federal law, which requires that campus sexual assault proceedings be impartial.
Third, the bill severely limits an accused student’s right to cross-examine his accuser. Under this legislation, the complainant doesn’t even need to show up to the hearing, and an accused student is entitled only to hear his or her accuser’s testimony. Should an institution allow the complainant to be questioned, an accused student must submit their questions to the fact-finder, who has unfettered discretion to decide whether to ask the questions or set them aside. FIRE has seen cases using this process in which nearly all of the accused’s questions went unasked. Fact-finders should be permitted to set aside questions only when they are irrelevant or unduly prejudicial—and adjudicators should be required to explain their rationale on the record for appeal.
Fourth, the bill continues to allow institutions to restrict the role an attorney can play when assisting students in the campus disciplinary process. Under federal law, institutions must allow students to have an advisor of their choice assist them in the process, and in federal regulations, the Department of Education has interpreted this requirement to include the right to have a lawyer present. Unfortunately, most institutions prohibit attorneys from actively participating in the process, relegating them to serve as “potted plants” while their clients defend themselves. This is particularly problematic because statements that students make during campus investigations and proceedings are often deemed admissible against them in criminal court. Without the right to have an attorney speak on their behalf, accused students are induced to unknowingly waive their Fifth Amendment rights. Some campus administrators and law enforcement officers exploit this loophole to intentionally skirt the requirements of Miranda v. Arizona, (1966). This bill would empower Mississippi institutions to continue this unethical practice.
Fifth, the bill may endanger impartiality through its requirement that trainings, investigations, and adjudications be conducted in a “survivor-centered” manner, incorporating “trauma-informed responses.” FIRE has no issue with training 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. Unfortunately, training in this perspective may go on to suggest, as it did at Harvard University, that those involved in disciplinary processes treat factual inconsistencies in a complainant’s account as proof that the alleged event took place. While some victims may indeed experience trauma in that way, it’s problematic to broadly assume (and to instruct fact-finders) that inconsistencies in an accuser’s account are proof he or she is telling the truth.
A final way in which the bill puts accused students at a disadvantage is that it provides resources to complainants without providing similar resources to accused students. FIRE has no objections to providing resources to complainants. Colleges should do that. But resources should also be made available to accused students to help them navigate the campus system and address their psychological needs.
It is good to see Mississippi legislators tackling campus sexual assault, and FIRE is glad to see that the bill includes an amnesty provision so that unrelated campus code infractions discovered by administrators as a result of complaints of sexual assault filed in good faith (or witnesses’ participation in the proceedings) will not be pursued. But a vast majority of HB 1039 fundamentally betrays the promise of impartiality, doubles down on the federal government’s short-sighted, biased approach to the issue, and dispenses with important due process protections. Legislators should keep in mind that procedures that are unfair to the accused actually harm the long-term interests of victims of sexual assault, because they damage the credibility of campus proceedings and diminish public confidence in their results. FIRE hopes the legislature will rethink the bill and either replace its problematic provisions with language that reflects the rights of all students or abandon the bill altogether. If it wants to work on alternative legislation, FIRE would be happy to help.