A congressional bill aimed at curbing sexual assault on America’s college and university campuses actually would make the problem worse, contends the anti-violence group Stop Abusive and Violent Environments, or SAVE.
The Campus Accountability and Safety Act sponsored by Sen. Claire McCaskill, D-Mo., includes provisions for counselors for sexual assault victims, anonymity for those who report sexual assaults and increased standards for campus security and safety officers.
Her office declined to respond to WND questions, but in a statement previously released by her press office, she said women on college campuses are in danger of sexual assault.
“Currently, an American woman who attends college is more likely to be a victim of sexual assault than a woman who does not attend college. At the same time, institutions of higher education across the country have been unable, or unwilling, to adequately address the problem,” she said.
“The current lax oversight of the federal laws on the books has the perverse effect of incentivizing colleges to encourage non-reporting, under-reporting,and non-compliance with the already weak standards under current federal law,” she said.
Her plan also has support from Sens. Dean Heller, R-Nev., Richard Blumenthal, D-Conn., Chuck Grassley, R-Iowa, Kirsten Gillebrand, D-N.Y., Kelly Ayotte, R-N.H., Mark Warner, D-Va., and Marco Rubio, R-Fla.
But SAVE President Everett Bartlett said one of the major consequences of the bill will be to remove some of the U.S. Constitution’s protections for the accused.
“The bill as it reads is biased in favor of the accuser and biased against the accused. It will make it difficult to protect a young man from false accusations,” Bartlett said.
“There are due process protections that are supposed to kick in [under current law] and because the bill removes much of the local law enforcement from the picture, it will be easier for the accuser to make accusations with no proof,” Bartlett said.
Manhattan Institute Senior Fellow Diana Furchtgott-Roth confirms Bartlett’s concerns that McCaskill’s bill would encourage the prosecution of young men accused of sexual assault without due process.
“They can proceed without the amount of evidence [that] would be believed to be necessary in a court of law. The law will allow the prosecution to pursue these crimes without letting the one accused have the constitutional right to respond to their accusers,” Furchtgott-Roth said.
Bartlett points to Department of Education guidance on handling sexual assaults released in 2011. The guidance, under Title IX of the Education Amendments, recommends colleges proceed with disciplinary action for sexual assaults using the “preponderance of the evidence” standard instead of reasonable doubt.
“That means that 50 percent plus 1 percent is adequate to decide if the accused is guilty,” Bartlett explained.
He said the obvious problem with the DOE guidelines, together with McCaskill’s bill, is that the primary responsibility for campus sexual assault investigations will fall to the school’s disciplinary boards.
“These are the bodies that are made up of faculty, staff, and students and who mostly handle cases of plagiarism, cheating, and college and education-related actions. This bill will give these panels jurisdiction over sex crimes when the stiffest penalty the disciplinary board can hand down is expelling a student from school,” he said.
“So, these inept panels are going to be dealing with he-said, she-said accusations of sexual assault. You have the board members asking unrelated and inappropriate questions. Neither the accused or the accuser have been happy with how disciplinary boards have dealt with existing cases,” said Bartlett.
He said the Title IX guidance has already caused turmoil on campuses across the country, resulting in 30 wrongful expulsion lawsuits.
Furchtgott-Roth contends a major problem with McCaskill’s bill is that the provisions are based on a flawed 2010 Centers for Disease Control study.
“The problem with their finding that one-in-five young women is sexually assaulted is that the data are wrong. I saw the study and their data is wrong and the questions are very confusing,” she said.
“They asked a series of questions and it’s not the respondents who decide whether or not there’s been a sexual assault. It’s the surveyor. The surveyor reads the question, listens to the answer and decides if there was a sexual assault or not.”
Another problem with the study, she said, was that a number of the responses were thrown out.
“They ended up only 8 percent of the responses. So the question is why are they using only those responses,” she said.
She said the CDC study doesn’t match the 2013 Department of Justice findings on campus sexual assaults from 2012.
“There was also a study from the University of Michigan that said one in 34 women is assaulted. That’s far too many but it’s less than one-in-five,” she said. “It’s hard to believe that any family would send-off their daughters to college if it’s true that one of out five women is sexually assaulted on campus.”
She believes there’s an agenda behind the bill.
“This bill clearly plays into the feminist agenda, that men are always the ones who are the bad guys. This kind of bill definitely appeals to the feminists,” Furchtgott-Roth said.
She said it would add a layer of bureaucrats to the college system.
“As we all know, college costs are going up and this will only add to the expense – putting another layer of administration on top of the existing layers of campus bureaucracy,” she said.
But she said that possibly the best reason to oppose the bill is that it represents federal overreach.
“This is not a matter for the federal government. We have many states and many state attorneys general and they’re in charge. And local law enforcement should be in charge of prosecuting local rape crimes,” Furchtgott-Roth said.
“She argued Congress has plenty of other issues to solve, including immigration, the budget and entitlements.
WND previously reported the problems connected to the “preponderance of evidence” standard.
The change instituted in recent years has provoked a backlash as accused students fight back with expensive lawsuits.
While only four such lawsuits were filed against universities from 2008 to 2010, between 2012 and 2014 there were 18 cases, representing a four-fold increase, according to a report by Stop Abusive and Violent Environments that is touted as the “most comprehensive listing of campus sex lawsuits ever.”
“Nearly all charge the university failed to comply with fundamental due process requirements in adjudicating the claim,” the organization said.
The financial tab so far has been at least $36 million.
The surge came immediately after the 2011 change in the Department of Education’s sexual assault policy to the “preponderance of evidence” standard.
SAVE spokeswoman Sheryle Hutter charged that whoever “dreamed up the notion that criminal allegations of sexual assault could be handled by a panel that lacks the most basic understanding of due process.”
“The accused, victims, and universities – are all being shortchanged by the current federal mandate,” she said.
The organization has proposed requiring “all allegations of campus criminal sexual assault to be referred to local criminal justice authorities.”
The report is instructive. It describes the case of an unnamed victim of a 1994 tribunal at Gonzaga University in Spokane, Washington.
“The plaintiff, an elementary education student, had a sexually intimate relationship with Jane Doe, also a student at Gonzaga. Doe later told classmate, Julia Lynch, that she had been sexually assaulted. Roberta League, a Gonzaga office assistant, overheard Lynch telling a third classmate about the incidents,” the report said.
“An investigator for the state Office of the Superintendent of Public Instruction launched an investigation. Throughout the process, Jane Doe refused to make a formal statement. Based on the investigation, the Gonzaga dean decided not to sign the moral character affidavit for the plaintiff’s teaching certification.
“Prior to the decision, the plaintiff had not been informed of the investigation or provided an opportunity to refute the allegations. The plaintiff sued for defamation of character,” the report said.
During the trial, the alleged victim declined to claim she had been assaulted.
The jury awarded the plaintiff $1.1 million damages, plus attorneys’ fees.
The Washington Supreme Court upheld the verdict for claims of defamation, invasion of privacy, violation of FERPA rights and breach of contract, the SAVE report said.
Warner was found guilty of sexual assault by a campus court in 2010, despite the facts established at the time by city police. Officers not only refused to charge him in the case but also alleged his accuser made a false report. Police issued a warrant for her arrest.
Even so, the university process found Warner guilty, and it took 18 months to resolve. During that time, Warner not only was banned from the UND campus but also from all college campuses in the state.