Senators seek law to boost college sexual assault reporting
Their proposal comes as groups speaking for both victims and alleged perpetrators complain that putative rape cases are often mishandled on campuses.
The proposed Campus Safety and Accountability Act would "ensure campus sexual assault cases are handled with professionalism and fairness to better protect and empower students, and would provide colleges and universities with incentives to solve the problem of sexual assault on their campuses," said the senators in announcing the reform bill.
They said current law allows universities to under-report sexual assault, citing data from the U.S. Department of Education that found that more than 6,700 such cases reported by schools in 2014, a number the Justice Department said could be as much as four times higher.
At the same time, critics say that those accused of rape, including those making seemingly reasonable claims that the sexual acts were consensual, enjoy too few procedural rights to find exoneration.
The legislation, Senate Bill 590, was led by Democratic senators Claire McCaskill of Missouri and Kirsten Gillibrand of New York, and with the help of leaders from the End Rape on Campus activist organization who spoke at a news conference in Washington.
"I worry that there are too many voices out there saying 'is this really a big deal?' Yes, it is a big deal." McCaskill said Tuesday, adding that many schools have not followed the law in reporting such incidents.
"We want due process. We want transparency," she said, adding that it was fairer to the victims and also the institutions when people there are trained to handle the cases and when prosecutions can be effective.
A growing number of students have filed lawsuits, claiming that colleges and universities have denied them due process rights in disciplinary hearings over sexual assault allegations on campus.
The growth of such lawsuits, now numbering more than 90 active cases, has been tracked by the campus watchdog group, the Foundation for Individual Rights in Education (FIRE), which says more schools are rethinking how these proceedings can be carried out more fairly.
"FIRE thinks that the ideal solution is to make sure that entities are assigned roles that they can perform well and competently," Joseph Cohn, FIRE's legislative and policy director, said of sexual assault investigations and hearings. "They probably should not be paying amateur investigators in amateur courts.
"In a world in which the federal government is going to require schools to decide these cases, they should at the very least require these schools to be more fair. To make sure that both students involved have rights to have lawyers actively represent them in cases."
The lawmakers on Tuesday called for tougher and more defined legislation, claiming that about 80 percent of all sexual assaults against female students are unreported to police. The senators said about 30 percent of all campus law enforcement officers get no training on handling sexual violence at their schools, while 73 percent of those colleges and universities have no protocol for campus police and university officers on how they work together on such cases.
Currently, Title IX is enforced by the Department of Education's Office of Civil Rights where there are 272 open and active investigations on campuses.
The office has two options available to sanction universities — take away all federal funding or make a recommendation for changes. The new law would give sanctioning power of up to 1 percent of a university's operating budget. It would also require all colleges and universities to offer campus climate surveys, allowing students to report their experiences rather than relying on reporting by university officials.
"What we are trying to do is flip the incentives," said Annie Clark, co-founder and director of End Rape on Campus, who was assaulted while a student at the University of North Carolina. "This is happening on every campus,” she added. “Sexual violence is not a partisan issue."
The lawmakers, in announcing their bill, said that "most cases of campus sexual assault are not instances of 'stranger rape,’ " with 78 percent of campus sexual assaults "perpetrated by someone the victim knows."
"There are some campuses that are trying to respond to this," said Sen. Shelley Moore Capito, a Republican from West Virginia, who lauded efforts to improve the environment at West Virginia University and Marshall University, the two flagship schools in her home state.
Campus watchdogs say that, often, both perpetrators and victims must face a disciplinary hearing where the process is far different than an actual trial in which both parties can have an attorney, can participate in discovery and forensic evidence-gathering and use other measures put in place in to credibly gather evidence.
The way schools handle such cases is different across the country, FIRE added, calling it an area of law that continues to evolve. Recently, the landscape for plaintiffs, while remaining "uncertain" has begun "to change for the better," FIRE said in a policy briefing by its attorney Samantha Harris.
Students, in lawsuits that have been filed after a campus body has ruled, have claimed that school misconduct proceedings often amount to kangaroo courts where their rights are trampled and a ruling against them can have life-changing consequences. Such adjudications can go on their transcripts, making transferring to another school difficult as well as impacting things such as future employment.
"None of it would be a problem if adjudication were thorough, fair and reliable. We want rapists to be in jail," said Cohn, the FIRE director. "But if they are done in a slipshod fashion — amateur hour — then there are some serious questions about fundamental rights here."
Most schools "are not equipped to do it right," he added of handling sexual assault charges.
"We're also injecting a tremendous amount of politicization. The biggest issue is that we are expecting panels of campus administrators — deans, professors from the English department, and sophomores studying anthropology — to be able to figure out if a rape occurred and they do so without the tools that the criminal justice system has," with no legally trained judges presiding and no lawyers representing the interests of both parties.
Student courts also lack subpoena power, he added. "That is a huge one. There are cases where the alleged rape happens in a dorm room and a roommate is in the room at the time. That person is friends of both students in the case. They don't want to come forward and say what they saw or heard because of loyalty to one or another."
Cohn added: "The idea that you can proceed through a hearing without that evidence is crazy and schools can't force people to come forward and testify and if even they could, they can't put them under oath."
More schools are reviewing how they handle Title IX claims to make them more fair, said Stetson University law professor Peter Lake, who serves as director of the school's Center for Excellence in Higher Education Law and Policy.
"The stakes are very, very high both in and out of court with regulatory mandates and litigation. Schools have struggled to find people who have the judgment, skill and training to do these jobs," he said of student hearings. "Some are turning to outside arbitrators and also changing how they train those who handle student sexual assault proceedings in a campus setting. They have to be properly trained on Title 9 issues including trauma-informed investigative training.
"These are real people with really serious issues, in many cases, and there is no room for amateur play," Lake said. "Small mistakes can be big consequences for people."
Lake added of this new wave of lawsuits that are emerging: "The pot has been on the stove for a while and it's finally starting to blow steam."