As we noted earlier, scholar and critic Wendy Kaminer—a member of FIRE’s Board of Advisors—published a forceful critique of the SaVE Act, a proposed federal law which would require colleges to lower the standard of evidence for prosecuting campus sex crimes, at The Atlantic.
Kaminer’s piece caught the eye of Daniel Luzer, Web Editor at Washington Monthly and proprietor of its College Guide blog. Kaminer’s piece made the same impact with him that it did with FIRE. Luzer notes, as Kaminer does, that the bill, while well-intentioned, could lead to a dangerously uneven playing field:
According to an article by Wendy Kaminer in the Atlantic, the bill is actually atrocious as far as actual legal rights are concerned. Perhaps the biggest problem here is that just being accused of sexual assault doesn’t make you guilty of sexual assault. As Kaminer writes:
The SaVE Act implicitly assumes the guilt of students accused of sexual violence or stalking and ensures that guilt is fairly easy to establish. It requires schools to employ the lowest possible standard of proof – a preponderance of evidence – in disciplinary hearings…. former Department of Education official Hans Bader stresses that "‘preponderance of the evidence’ means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined." It also means that students may be found guilty of conduct that constitutes a criminal offense, expelled, and exposed to civil and criminal liability without any of the protections afforded criminal defendants in formal judicial proceedings, including representation by counsel.
The self-identified victim (who is nowhere in the bill accurately described as an "alleged victim") must receive an explanation of his or her rights, information regarding counseling and the assistance of victims’ advocates, and options for changing residence or class schedules. What’s objectionable about these provisions? They provide alleged victims with rights to information and assistance that may not be provided to their alleged assailants. The SaVE Act does not require school officials to extend similar consideration to students accused of serious misconduct – perhaps wrongly. Schools may choose not to inform accused students of their rights… or to advise them about counseling or schedule and residency change options.
Kaminer is right. This looks pretty disturbing.
Luzer further writes that
protecting students from sexual assault doesn’t require colleges to trample over the rights of the accused. That’s the whole thing about living in a safe, reasonable society governed by the rule of law: the accused have rights to be protected, too.
[…] Just think of what can happen if someone is incorrectly accused of sexual assault. His life is ruined. It’s a very bad idea to enshrine these sorts of mistakes in federal law.
Luzer’s warning (and Kaminer’s) bear repeating in as many arenas of this debate as possible. Hopefully his piece—and Kaminer’s longer Atlantic piece—will be widely read.