In the midst of a national debate on how college campuses handle rape allegations, House Republicans have proposed new legislation to regulate the issue.
The Safe Campus Act of 2015 (H.R. 3403) was introduced in the House of Representatives July 29 by Rep. Matt Salmon (R-AZ). The bill is currently under review in the House Committee on Education and the Workforce.
The bill would change how federally financed colleges respond to reports of sexual offenses, as well as how they adjudicate those offenses. It also works to reestablish specific Title IX directives, which prevent colleges from forcing gender-exclusive student groups to integrate, and it mandates sexual assault education in all collegiate institutions receiving federal funding.
If the bill becomes law, students alleging sexual offenses will have a choice of whether to press for a criminal investigation after reporting an incident to the school. If the student chooses not to do so, campus officials would not be allowed to launch an independent investigation or enforce disciplinary measures against the accused for conduct code violations.
Should the alleged victim choose to report the incident to law enforcement, a criminal investigation would ensue, during which campus officials could establish no-contact orders, class or dorm changes or other interim measures against the accused. Only after the legal investigation would campus officials be allowed to pursue disciplinary proceedings. These proceedings would be determined through a hearing in which colleges would be required to give due process to the accused. Due process rights include the right of both the accused and the accuser to hire a lawyer at their own expense and to “safely confront witnesses,” among other rights. Schools would be allowed to choose their own burden of proof.
Current interpretations of Title IX of the Educational Amendments Act of 1972 require campus officials to investigate and prosecute sexual offenses that occur on campus. However, there are no legal standards of due process, and colleges can punish individuals without any criminal charges being pressed. The Safe Campus Act would require more involvement from law enforcement, as well as more protections for the accused.
This bill is part of a recent wave of legislation intended to improve campus responses to sexual assault allegations. Such legislation includes the Campus Accountability and Safety Act, which mandates support services for victims, specialized training for campus personnel, standardized campus disciplinary procedures and closer engagement with law enforcement. The act was introduced in 2014 by Senator Claire McCaskill (D-MO) and has since received bipartisan support.
At the College of William and Mary, the Safe Campus Act has drawn mixed reactions among administrators, faculty and student support groups.
In an email, Dean of Student Conduct David Gilbert criticized the bill for discouraging student reporting.
“If students know that they will need to report a matter to law enforcement before the university can investigate and conduct a hearing, some students may never come forward,” Gilbert said in an email. “Such a chilling effect on reporting limits our ability to address a critical campus safety issue and to meet our obligations under Title IX. More importantly, students who need support and access to community resources such as medical, psychological, and academic support, may not be connected to those services at the time they need them most.”
He further argued that the bill’s due process protections were unnecessary at the College.
“William and Mary exceeds these standards by providing more transparency and student participation in proceedings than is required, more time to respond than is required, and more avenues for advice and assistance,” Gilbert said. “What the legislation appears to contemplate is a very legalistic approach to resolution of students’ sexual misconduct reports; providing a quasi-court judicial proceeding as the only avenue for resolution can create barriers for students to come forward and inform the university of incidents, as many students do not wish to discuss serious and intensely private matters in a court-like process.”
In another email, William and Mary Law School professor Cynthia Ward expressed both praise and measured concern for the new legislation’s due process provisions.
“On-campus student disciplinary adjudications are not criminal, or even civil legal proceedings,” Ward said in an email. “They are proceedings brought for violations of student codes of conduct, and the school’s job in that context is not to decide whether a crime was committed but to decide whether the student code was violated and, if it was, how serious the violation was and what sanctions should be imposed for the violation. So the real question that now confronts college policy makers is, when a charge of sexual assault is brought in this procedural context, how much “process” is “due”? My own answer is, “quite a lot.””
Ward said that as colleges and universities begin to increase the severity of punishments for sexual misconduct, the pressure for administrators to ensure that their ruling is correct also increases.
“It is crucially important that colleges employ fair and open procedures for facilitating reports of sexual assault; that they punish such assaults with appropriate sanctions; and that they offer survivors whatever help they can give both during and after the adjudication process,” Ward said in an email. “But it is just as important that schools assure the accused person of a fair and impartial adjudicatory proceeding in which he or she has adequate opportunity to understand the process, absorb and respond to the complainant’s evidence, and present his or her case to those who will decide whether or not a code violation took place. A process that is not fair, or is not perceived to be fair, to both parties, cannot serve the interests of anyone, including the victims of sexual assault.”
According to Ward, the most controversial provisions of the Safe Campus Act are the requirements for the schools to report violent sexual offenses to law enforcement officials and to allow both parties to hire attorneys, who would play an active role in proceedings.
“Critics worry that mandatory involvement of law enforcement will discourage reporting and delay the resolution of cases, to the disadvantage of sexual assault survivors and of the campus community,” Ward said in an email. “Similarly, critics are concerned that allowing attorneys to become a more active part of the college disciplinary process will further complicate and slow a process that is already straining the available resources and expertise of many institutions of higher learning.”
Ward said that she believes that it is impractical and likely unnecessary to allow any student accused of misconduct all the rights given to criminal defendants, but concerns about due process in these situations is legitimate.
“If the [Safe Campus Act] is successful only in raising the profile of due-process concerns in campus adjudications, that will be a good thing in my view,” Ward said in an email. “From monitoring the national debate on this subject, my sense is that many colleges and universities would benefit from more, and more explicit, discussion of the proper balance between securing justice for victims and ensuring due process to those accused of being perpetrators, in the context of campus adjudications for sexual assault. In the rush to make changes that will assist victims of sexual assault, it can be easy to forget that the process will only serve survivors, and society, to the extent that it is accurate, balanced, and fully informed by both parties.”
HOPE President Kelly Gorman ’16 also said she appreciated certain aspects of the bill, yet questioned others.
“Mandatory education for every student about resources and bystander intervention is awesome,” Gorman said in an email. “One way this bill may aggravate stress for the survivor is in their decision to report. From reading the bill it seems like the school will only be able to take action if the victim gives consent for the case to also be investigated by law enforcement. They can still report to the school and it is great that they do have to give consent for the school to contact law enforcement or give consent for them to not contact law enforcement, but I am not entirely sure what it means for a survivor who wants to report to the school and not law enforcement, and what types of protection they would be able to get.”
Correction: Title IX, not Title XI, of the Educational Amendments Act of 1972 requires campus officials to investigate and prosecute, not persecute, sexual offenses that occur on campus.