New Sexual-Assault Bills: Possibly Better than Nothing

by Spencer Case
Rubio’s bill picks some low-hanging fruit, but leaves fundamental issues unresolved.

With the fall 2014 semester fast approaching, lawmakers introduced three bills last week to stem sexual violence on campuses. While some of the proposals could improve the status quo, none does anything to address legitimate concerns about the rights of the accused.

On Wednesday, Senators Marco Rubio (R., Fla.) and Claire McCaskill (D., Mo.) announced support for the Campus Accountability and Safety Act (CASA). On the same day, Representatives Jackie Speier (D., Calif.) and Patrick Meehan (R., Pa.) introduced the Hold Accountable and Lend Transparency (HALT) on Campus Sexual Assault Act. Finally, California Democrats from both houses, Senator Barbara Boxer and Representative Susan Davis, introduced the Survivor Outreach and Support (SOS) Campus Act.

McCaskill’s survey of the sexual-violence procedures on 440 campuses in early July provided some impetus for reform. The results indicated that 22 percent of the universities allow athletic departments to supervise disciplinary cases of sexual misconduct involving athletes more than 10 percent lacked a Title IX coordinator to determine whether they were running afoul the law; and a whopping 73 percent lacked protocols for interacting with law enforcement in response to accusations of sexual violence.

CASA, the bill sponsored by Rubio and McCaskill, aims to pick some of this low-hanging reform fruit.

“Now, no bill is going to solve every problem in the world,” Rubio said. “But I do think it advances the cause forward by creating a uniform system, where every single instance [of accusation of sexual assault] is treated the same. There is no special preference because someone can dunk a basketball, or throw a ball eighty yards down the field.”

In addition to these reforms, CASA would impose stiffer penalties on schools that violate the Clery Act, which requires institutions of higher learning to annually disclose information about crimes that occur on campuses. It would also ensure minimum training standards for on-campus officials to respond to sexual assault, and mandate the creation of “Confidential Advisors” to aid victims.

Like CASA, the HALT on Campus Assault Act would impose fines for violating Title IX. It would also restructure the Department of Education to unify enforcement efforts and mandate that universities conduct an annual campus climate survey.

The SOS Campus Act, the only one of these three bills not to be introduced with bipartisan support, requires universities to designate a victim’s advocate, whose responsibilities would include ensuring the victim has access to crisis counseling and attending, at the victim’s request, any administrative or institution-based adjudication proceedings.

Some of the measures in these bills are common sense. Joseph Cohn, the legislative and policy director for the Foundation for Individual Rights in Education (FIRE), praised CASA for tightening the relationship between universities and law enforcement.

“The most promising aspect of it is that’s trying to . . . formalize the relationship between universities and law enforcement, because really we think law enforcement needs to be taking the lead here in what are very serious felonies,” Cohn said. “Universities, quite frankly, aren’t equipped to do investigations that yield credible findings, they don’t have the tools to do it properly.”

Unfortunately, none of these bills would do anything to assuage longstanding concerns about the rights of the accused in university disciplinary proceedings. Indeed, they could exacerbate the problem. The language of all three bills use words like “victim” and “survivor,” which imply that the accusation is true, rather than neutral terms like “complainant” or “accuser.”

Writing on Minding the Campus, KC Johnson notes that CASA does not require the police to share information with the disciplinary board unless the “victim” (read: “accuser”) requests it. He writes, “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.”

Both CASA and the SOS Campus Act would require universities to designate advocates for the “victim.” The SOS Campus Act is more detailed about the advocate’s responsibilities. Neither says anything about establishing similar advocacy for the accused.

While conservatives worry that these new measures will increase the number of disciplinary actions without due process, some liberals believe a bill with more teeth is needed to make universities comply with existing law. Writing in the New York Times, Anna Bahr observes that the Department of Education would be unlikely to enforce the stiffer penalties for noncompliance with Title IX even if CASA were passed:

A loss of federal funding is so extreme for colleges that the punishment has never been imposed. Couple that with the fact that the government agencies responsible for holding colleges accountable have found themselves swamped with complaints under Title IX, which protects against discrimination based on gender in education programs — from equity in sports to sexual assault — and enforcement seems like an empty threat.

It seems that everyone can find something to like, and something to dislike, in the new legislative efforts to end sexual violence on campuses. Whatever the fate — or merit — of these bills, they may indicate that bipartisanship is yet alive.

— Spencer Case is a philosophy graduate student at the University of Colorado and a National Review intern. He is a U.S. Army veteran of Iraq and Afghanistan and an Egypt Fulbright alumnus.