The Safe Campus Act of 2015 and the Fair Campus Act of 2015, both introduced in Congress this July, would affect the way in which federally-funded universities like AU are required to handle allegations of sexual assault.
Supporters of the bills say the legislation is designed to extend due process rights to college campuses, where student conduct proceedings do not necessarily include the same protections available in a court of law. However, critics say the bills will discourage survivors of assault from reporting it to universities. According to the Rape Abuse and Incest National Network, 68 percent of sexual assaults go unreported to police.
Sara Yzaguirre, coordinator for victim advocacy services at AU, said the proposed acts would reduce the number of survivors reporting their experiences.
“Just based on the number of students that don’t want to report at all and then thinking about my number of students that report to the University but not to Metropolitan Police, it would result in significantly reduced numbers in campuses,” Yzaguirre, who works in sexual violence prevention as well as in direct advocacy for survivors on campus, said. “Some people are calling it a ‘cooling effect.’”
Safe Campus and Fair Campus
The Safe Campus Act would mandate that any reports of sexual assault brought to the University also be reported to local law enforcement. A confidentiality exception occurs if the survivor “provides a written notification to the institution that [he or she] does not want the allegation to be investigated by a law enforcement agency,” according to the act.
Additionally, if a sexual assault allegation is brought to both a university and local law enforcement, the university is prohibited from disciplining the accused perpetrator outside of temporary sanctions, which might include things like an order to not contact the survivor.
Similarly, the Fair Campus Act does not allow universities to implement any sanctions on any individual, outside of interim sanctions lasting no more than 15 days, and highlights that each “institution shall provide each person against whom the allegation is made with a meaningful opportunity to admit or contest the allegation,” according to the act.
In the months following the introduction of the two acts, many sexual assault advocacy groups across the country have protested the new potential requirements.
Amanda Swanson, the coalition building chair for AU Students Against Sexual Violence, said she thought the acts are problematic on several levels.
“First of all there’s already a really, really big problem with reporting to any level of authority,” Swanson said. “Survivors frequently feel as if they are not going to be believed, supported or that they’re not going to get any justice for what’s happened.”
Because of a lack of support, some survivors may not feel comfortable speaking to law enforcement, according to Swanson.
The Clery Center for Security on Campus, a prominent sexual assault advocacy non-profit, spoke out against the new acts on Sept. 28, joining 28 other advocacy groups that had previously taken a public stand against the proposed measures.
“We have two federal laws - Title IX and the Clery Act - that already require a fair and equitable process on campus,” a statement from the Center said. “The SAFE legislation fails to acknowledge that the court and campus adjudication processes have different goals.”
Bills address due process concerns
Joe Cohn, the legislation and policy director at the Foundation for Individual Rights in Education, says his organization has found that on many campuses across the country, conduct processes are broken. FIRE is a nonprofit organization dedicated to defending individual rights on college campuses.
Cohn said there are very few procedural safeguards for the alleged assailant in campus hearings. At some schools, there are no hearing processes, and a single investigator may serve as judge, jury and executioner. Sometimes, a university adjudicator may not hold subpoena power. At other schools, there may be no access to forensic evidence or no means to properly collect and use evidence, he said.
“It’s in that context that I say it’s particularly bleak,” Cohn said. “There’s a tremendous amount of politicization of this issue. People automatically line up on team M or team F, injecting a ton of political and personal biases without even knowing any of the facts. You don’t see that in campus cases over the theft of a laptop.
Swanson said she agreed that it is important to strengthen rights on campus and educate survivors and alleged assailants on their rights.
“I certainly appreciate the fact the intent behind the bills is to expand due process rights to accused perpetrators and that’s important,” Swanson said. “Having a just process for all individuals involved is important, and I want to make it clear that we in no way downplay that.”
The concern that colleges cannot handle major criminal incidents is widespread. According to a poll sponsored by the Fraternity and Sorority Action Fund, 77 percent of respondents were in favor of the Safe Campus Act, and 91 percent of likely voters are in favor of law enforcement taking a greater role in campus sexual assault cases.
“Talking to investigators while witnesses’ memories are fresh, and the evidence at its peak value is in my mind the best way to start building trust between complainants, survivor’s rights advocacy groups and law enforcement professionals,” Cohn said. “If you link people quickly, and you still see case after case, a particular office declining to proceed, then you have more grounds to know ‘here’s a place where we need intervention.’”
“A winnable case”
Yzaguirre said she believes that although many law enforcement officials care deeply about this issue, the lack of evidence in cases of assault that occur by coercion or under the influence of substance, rather than by force, make cases very hard to prove beyond reasonable doubt.
“The criminal justice system in general doesn’t have a great track record when it comes to investigating instances of sexual violence,” Yzaguirre said. “I have seen first-hand cases go through the process only to get dropped because the district attorney, the prosecution, doesn’t feel it’s a winnable case and because they’re elected officials they want to keep their number up of cases won. That basically ensures that a survivor will go through the entire investigation process only to have their case dropped at the last minute.”
Under the Title IX amendment of the Civil Rights Act of 1964, any school that receives federal money through Pell Grant scholarships or other means is required to address reports of sexual violence with an investigation.
Currently at AU, someone can bring allegations of sexual assault to the University by mentioning an incident to a required reporter, who are required by law to pass on the allegation to the Title IX office. These reporters may include staff and resident assistants. Under Title IX, any time the University hears an allegation of assault it is obliged to open an investigation, but if the survivor may opt out of the process if he or she does not wish to participate.
Both SASV and Yzaguirre are working to reform the University proceedings, hoping to change things like the amount and type of communication between the survivor and perpetrator during an investigation, and what individuals are chosen to be on the panel that hears the case. Currently, the accused can question the survivor through a hearing administrator, and the hearing panels that hear cases include a student, a staff member, a faculty member and the director of Student Conduct.
Appropriate role
One of the most controversial aspects of the Safe Campus Act, according to Cohn, is that it brings into question what everyone’s appropriate role is in an investigation of sexual assault.
“There are tremendously important and vital things that the school should be doing, but I find it less persuasive that they should be doing the fact finding and the investigating because they don’t have the tools to do it competently,” Cohn, of the nonprofit FIRE, said. “I don’t care whether we’re talking about this context or any other context, one of the thresholds of whether or not you should do something is ‘can I do it competently?’”
He said that a good aspect of the Safe Campus Act is is that they make a clear distinction of who can be a mandatory reporter and who from the university can participate in a hearing.
Although the current AU investigation process is flawed, Swanson said, the two Congressional acts are not a better solution.
“I think creating some outline of what a conduct process ought to look like [would be better],” Swanson, the AU student who works with Students Against Sexual Violence, said. “It doesn’t necessarily have to be a hard fast bandaid by the federal government, ‘this has to happen this time, this has to happen this time,’ but creating some sort of an outline that will make it easier for individuals to understand what the process looks like, what they can expect and what representation that they have is very important.”
Both the Safe Campus and Fair Campus Act encourage educational programming for university students that would train them in things like healthy-relationship building and bystander intervention, which AU already has programs for.
Student group SASV campaigned last year with other clubs, for mandatory, first-year consent-based training, and found success in the introduction of Empower AU to incoming freshmen and transfer students in fall 2015.
Cohn predicts that Congress will not pass a campus sexual assault bill until they finally realize the Higher Education Act, which addresses all issues in higher education and will take them several years, not happening until after the next presidential elections.
“I think that a final version of the bill is likely to include some of the provisions of each of these different bills that have been put on the table,” Cohn said. “If I have to predict, I think we will get some due process measures and I think that some aspects of CASA [the Campus Accountability and Safety Act] will also pass. None of the bills are going to be passed letter by letter, exactly as they’re written.”
