Sexual Assault Prevention: the Good Intentions Problem
by Daniel Luzer
It requires colleges to include alleged sexual violence in crime reports. It also obliges college to have specific polices about how to address things like stalking. As Casey said:
We must ensure that when we send our sons and daughters off to colleges and universities, we are providing every means necessary for them to learn in a safe environment. April is Sexual Assault Awareness Month, an ideal time for us to pause and recognize the victims of sexual assault and then step up and take action to address issues like sexual assault, domestic and dating violence and stalking.
Good point. It’s too bad that Casey’s actual bill is so regrettable.
This bill seems, at least in its summary form, to make a lot of sense. According to the senator’s deputy chief of staff, Larry Smarr: “Senator Casey definitely thinks that the bill should be a priority—this really should be a no-brainer. He’s going to push it aggressively, and he hopes that we can get something moving this year.”
Smarr may be a little optimistic about that “no brainer” thing.
According to an article by Wendy Kaminer in the Atlantic, the bill is actually atrocious as far as actual legal rights are concerned. Perhaps the biggest problem here is that just being accused of sexual assault doesn’t make you guilty of sexual assault. As Kaminer writes:
The SaVE Act implicitly assumes the guilt of students accused of sexual violence or stalking and ensures that guilt is fairly easy to establish. It requires schools to employ the lowest possible standard of proof — a preponderance of evidence — in disciplinary hearings . former Department of Education official Hans Bader stresses that “‘preponderance of the evidence’ means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined.” It also means that students may be found guilty of conduct that constitutes a criminal offense, expelled, and exposed to civil and criminal liability without any of the protections afforded criminal defendants in formal judicial proceedings, including representation by counsel.
The self-identified victim (who is nowhere in the bill accurately described as an “alleged victim”) must receive an explanation of his or her rights, information regarding counseling and the assistance of victims’ advocates, and options for changing residence or class schedules. What’s objectionable about these provisions? They provide alleged victims with rights to information and assistance that may not be provided to their alleged assailants. The SaVE Act does not require school officials to extend similar consideration to students accused of serious misconduct — perhaps wrongly. Schools may choose not to inform accused students of their rights or to advise them about counseling or schedule and residency change options.
Kaminer is right. This looks pretty disturbing.
Sexual violence on college campuses is a very real problem, one worthy of new, more serious laws. As many as one in five women are sexually assaulted in college. Schools often don’t report the incidents, which can lead victims to conclude that colleges don’t take such things seriously. It’s for reasons like this that, for instance, earlier this month Joe Biden announced a national sexual assault awareness campaign. As the vice president explained:
Students across the country deserve the safest possible environment in which to learn. That’s why we’re taking new steps to help our nation’s schools, universities and colleges end the cycle of sexual violence on campus.
But protecting students from sexual assault doesn’t require colleges to trample over the rights of the accused. That’s the whole thing about living in a safe, reasonable society governed by the rule of law: the accused have rights to be protected, too.
As Kaminer rights, the law is salvageable, but it’s certainly something Casey should address. Just think of what can happen if someone is incorrectly accused of sexual assault. His life is ruined. It’s a very bad idea to enshrine these sorts of mistakes in federal law. [Image via]