Experts React to the Campus Sex Assault Bills

Capitol Hill hearings on the campus sexual
assault issue finally produced some legislation this week. Sens.
Claire McCaskill (D-Missouri), Marco Rubio (R-Florida), and others
of both parties unveiled the
Campus Accountability and Safety Act yesterday. Sen. Barbara
Boxer (D-California) introduced her own bill, the Survivor
Outreach and Support Campus Act, Thursday.

What’s in the bills? Some reasonable provisions, such as new
requirements that college administrators work alongside law
enforcement to resolve sexual assault instances. This is a good
thing: Rape is a crime and it should be handled by the police. As
the
Foundation for Individual Rights in Education notes of the
CASA:

Perhaps most promisingly, the Act would require institutions to
enter into agreements with local law enforcement agencies to
“clearly delineate responsibilities and share information”
regarding crimes like sexual assault. Sexual assault should be
understood and addressed as the felony it is, whether it occurs on
or off campus. Mandating a formal relationship with local law
enforcement is a small but necessary step towards ensuring that the
expertise, experience, and resources of the criminal justice system
are brought to bear on these investigations.

However, the bills still contain plenty that would trouble civil
libertarians. KC Johnson
of Minding the Campus raises some questions about the CASA’s
presumption that accusers are truthful:

Subsection 4 of the law enforcement section of the bill,
however, contains a deeply troubling provision, requiring colleges
to develop “a method of sharing [with law enforcement] information
about specific crimes, when directed by the
victim [emphasis added].” First, at the point in the case
covered by this subsection, there is no “victim”—there’s an accuser
and an accused student. McCaskill’s word choice suggests that she
and her colleagues believe that an accuser is automatically a
“victim,” thereby abandoning the presumption of innocence for the
accused. Second, the provision gives the “victim” authority over
whether or not to share information with law enforcement. It’s hard
to imagine any accuser would “direct” her college to share
information with police about the “specific crime” of filing a
false report, if the college uncovered evidence that the accuser
lied.

In fact, neither bill says anything about due process rights for
the accused. While Boxer’s bill does call on universities to assign
“advocates” to help accusers through the sexual assault
adjudication process, it does not extend similar representation to
accusers. As FIRE’s Joseph Cohn
notes:

Interestingly, the legislation also says that it will be the
advocate’s responsibility to “[a]ttend, at the request of the
victim of sexual assault, any administrative or institution-based
adjudication proceeding related to such assault as an advocate for
the victim.” FIRE has long urged lawmakers to ensure
that both student
complainants and the accused enjoy the right to
the advocacy of an attorney during campus adjudication proceedings.
This bill does not do that.

More from Reason on campus sexual assault
here.