More on Senate Committee’s Hearing on Campus Sexual Assault

December 10, 2014

Yesterday, we covered statements made by United States Senators during the first half of yesterday’s hearing before the Senate Judiciary Subcommittee on Crime and Terrorism on the role of law enforcement in combating sexual assaults on campus.

Today, we’ll analyze the testimony provided by the witnesses who spoke during the second panel of that hearing, including Angela Fleischer, Assistant Director of Student Support and Intervention for Confidential Advising at Southern Oregon University; Kathy Zoner, Chief of the Cornell University Police Department; and Peg Langhammer, Executive Director of Day One Sexual Assault and Trauma Center.

Angela Fleischer’s testimony centered on describing the benefits of the “You Have Options Program” implemented at Southern Oregon University in conjunction with their local police department. The program, cited as a promising new model for other institutions to follow, attempts to coordinate the efforts of educational institutions and local law enforcement agencies in responding to allegations of sexual assault on campus. Angela explained the program in her written testimony (PDF) as well as in her verbal remarks during the hearing:

Emphasizing a victim centered and offender focused response, the You Have Options program seeks to collect information about offenders in their community by encouraging victims to come forward and report in whatever manner they are most comfortable, including anonymously, in person or through a website. Victims choose the level of reporting they want and dictate the timeframe and scope of their investigation, and are assured of their right to suspend the investigation at any time. Providing these options to victims yields valuable information about offenders in the community that police would not otherwise have, regardless of the ultimate legal outcome.

While there appear to be many positive aspects of the approach taken at Southern Oregon University, FIRE is concerned that leaving the reporting of these accusations of serious violent sexual crimes solely in the hands of the complainant will dangerously result in cases slipping through the cracks. Instead, we recommend that campus administrators be required to report sexual assaults to police, so that local law enforcement officials have an opportunity to show the complainant what they can do to help. The other benefit of mandatory reporting is that it avoids a situation where law enforcement is utterly in the dark about the possibility of a violent sexual predator on the loose in the community. It’s important to note that even with mandatory reporting by administrators, it would remain the complainant’s choice as to whether he or she wished to actually cooperate with an investigation.

Fleischer’s testimony also included the following:

It is important for us to acknowledge that part of improving the campus response to sexual assault is improving the law enforcement response, so that it can be a viable, victim-centered option; close coordination between campus and law enforcement responders is vital.

FIRE wants all complainants to be treated with respect on campus and by law enforcement. We disagree that investigations should be conducted in a “victim-centered” manner—investigations must be both thorough and impartial, with the goal of gathering evidence for a potential trial. But we certainly agree with Fleischer that if the way law enforcement professionals interview complainants alleging sexual violence is flawed, we should tackle that problem head-on.

Perhaps most importantly, Fleischer described the status quo as follows (emphasis mine):

An assault happens. There is no clearly identified place for the victim to go for information, and she or he is encouraged by campus administrators to “just move on” or to accept help by engaging in the campus administrative process. The victim is never provided a clear explanation of the law enforcement response possibilities, or if police response is considered the investigation is often hindered by campus actions already taken.

Fleischer’s warning that campus involvement in investigations can hinder law enforcement investigations is of critical importance, and it should not be disregarded. This is one reason why FIRE urges lawmakers to insist that colleges get out of the game of conducting amateur investigations into sexual assaults and instead focus their efforts on playing a role in the process (counseling, separation, accommodations, etc.) that they are competent to fulfill.

The next witness was Cornell University Police Chief Kathy Zoner, whose testimony (PDF) was vitally important for the Senators to hear. One critical aspect of her testimony was her explanation of why concurrent investigations by law enforcement and campus administrators are problematic. She explained:

Concurrent investigations raise tricky issues for law enforcement and campus adjudicators to navigate. Campus police will, more likely than not, gather evidence that could be useful to the Title IX investigation. As a law enforcement officer conducting an investigation, my biggest concern is that sharing evidence may undercut a criminal case—which is on a much longer timeline—against a respondent. The collection and maintenance of evidence for a criminal prosecution is tightly controlled by procedural rules. This is not the case with administrative proceedings. The way that campus officials receive and treat evidence in an administrative investigation can negatively impact its admissibility in court, potentially undermining a criminal case. Additionally, if evidence is discovered after an administrative case is closed that would affect or overturn a decision, both parties may have already suffered irreparable consequences.

Chief Zoner also set forth some of the shortcomings she sees in the way the Campus Safety and Accountability Act (CASA) addresses this issue. In particular, she is concerned about the bill’s focus on requiring institutions to enter into memoranda of understanding with law enforcement agencies. Chief Zoner explained (emphasis mine):

A memorandum of understanding, or MOU, with local law enforcement is often highlighted as a best practice. It was a key recommendation in the report of President Obama’s Task Force to Protect Students from Sexual Assault, and is also included in CASA. I agree that an MOU can be helpful, but entering into one is not a simple procedure. MOUs with campus law enforcement are limited in some states, and some governmental agencies have policies prohibiting them from entering into them. If we can reach an MOU, there is no guarantee that local law enforcement will cooperate, nor are there consequences if they do not. Additionally, a complainant has no obligation to tell municipal law enforcement that he or she is one of our students, and in fact may initially choose not to do so in order to protect confidentiality. It’s possible that we would find out later, but after the opportunity to investigate has passed; for example, if one or both of the parties involved has graduated.

Given the one-sided nature of an MOU and the amount of time and resources it takes to secure one, lawmakers should consider carefully the benefits to be gained from an MOU before making a sweeping mandate. There might be a better, less costly, more balanced way to achieve the same goals. Indeed, the White House Task Force has yet to publish the model MOU it promised to have ready by end of June. In any case, the penalty proposed in CASA—up to 1 percent of a school’s operating budget—for failure to secure an MOU, goes too far. Although the legislation allows the Department of Education to waive the penalty if an institution demonstrates a good faith effort, it gives the Department far too much discretion in making that determination.

During her verbal remarks Chief Zoner was even more emphatic about the conflict of interest this penalty structure creates:

As I noted previously, resources to support training and trauma informed investigations will benefit campus adjudicators and law enforcement. I’m concerned, however, that the system of fines proposed in CASA does not differentiate between willful, knowing and intentional conduct and inadvertent conduct, but rather gives the Department great discretion to assess a significant penalty, thereby affecting the amount of resources available to do a better job. The bill allows the Department to keep the fines it collects, creating an incentive for over-enforcement. I strongly recommend that these provisions be revised to put the penalties more in line with civil rights laws, to differentiate between wilful and inadvertent violations and to direct the fines to research and training.

FIRE completely agrees and has voiced our concern that allowing OCR to keep the money it collects will tempt the agency to find violations that don’t exist.

Chief Zoner more bluntly testified:

The compressed timeframe for the administrative investigation may also taint admissible evidence and accelerate discovery in a way that negatively impacts the complainant in a criminal proceeding.

Wow! Talk about an important reason to get campuses out of the keystone cop business!

Zoner also criticized the CASA provisions about confidential advisors (emphasis mine):

Victim advocates on campus can help students navigate this process, explaining  what to expect and providing support throughout the investigation. I am very concerned, however, that a provision in CASA would require confidential advisors to conduct forensic interviews with victims that can be used as evidence in a criminal prosecution or campus disciplinary proceeding.

This requirement jeopardizes a client-centered support system that is so crucial for a survivor’s healing process. Confidential advisors should focus on the return of absolute control to a victim. Placing them in a fact-finding role—such as gathering evidence or taking an official statement—is a conflict of interest, violates the trust of victims, and will interfere with a confidential advisor’s ability to provide support.

FIRE agrees with this point on all fronts and argued that the confidential advisor provision created a conflict of interest in our early analysis of the bill. This is one problem with CASA that Congress can easily fix by making sure confidential advisors are advocates, not investigators.

The final witness of the day was Peg Langhammer, the Executive Director of Day One, a victims’ rights organization based in Rhode Island. The key part of Langhammer’s testimony was the following (emphasis hers):

Campus-based adjudication processes don’t work. Colleges alone are not competent to handle the investigation and prosecution of these cases, nor should they be. The college hearing process should be integrated with law enforcement. Police need to be involved, but it has to be a team approach.

Langhammer is not alone on this point. Colleges’ inability to properly adjudicate these cases has been argued by FIRE, as well as by the Rape, Abuse & Incest National Network (RAINN), and a litany of reporters, law professors, and advocates. Frankly, Congress should consider removing colleges’ authority to continue conducting hearings aimed at determining students’ guilt or innocence of sexual assault.

All three of these witnesses have lengthy track records of standing up for the interests of victims of serious crimes, including sexual assault. That is why it is so significant that all three are uneasy with leaving the adjudication of these cases in the hands of campus judiciaries—and all three say that getting these cases in the hands of law enforcement professionals is key to adequately addressing allegations of campus sexual assaults. While FIRE may not agree with every aspect of the approaches outlined by these witnesses, we share considerable common ground and hope their input is taken seriously by Congress.

Cases:  National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process