Students

Senate’s Revamped Sexual-Assault Bill Puts More Pressure on Colleges

February 27, 2015

A bipartisan group of 12 U.S. senators introduced legislation on Thursday that is aimed at curbing sexual violence on campuses in ways that protect both victims and accused students. The changes reflect heightened attention over the past six months to the due-process rights of accused students.

The Campus Safety and Accountability Act, sponsored by six Democrats and six Republicans, builds on legislation that was introduced over the summer but never came to a vote. The new version was strengthened with additional input from sexual-assault survivors, students, colleges, law enforcement, and advocacy groups, according to one of its main sponsors, Sen. Claire McCaskill, a Missouri Democrat. A companion bill is expected to be introduced soon in the House of Representatives.

The revised proposal comes at a time when the Department of Education is investigating nearly 100 colleges and universities for possible violations of the federal civil-rights law known as Title IX. Colleges have increasingly been held responsible under that law to investigate and resolve alleged assaults promptly and fairly, whether or not the police are involved.

As the pressure from all sides intensifies, colleges have been struggling to understand their legal responsibilities, as well as such fundamental questions as how to define rape, especially when ambiguous, alcohol-infused sexual conduct is involved.

Since the original bill was introduced, advocates for accused students who feel the process is often stacked against them have been encouraged by a couple of high-profile controversies: the unraveling, in December, of a sensational claim of gang rape at the University of Virginia that was reported in Rolling Stone magazine, and objections by law professors at Harvard University and the University of Pennsylvania that university policies offer accused students too little opportunity to defend themselves.

A ‘Road Map’ for Colleges

The new Senate bill acknowledges those concerns while stressing the need to hold colleges accountable. "To truly curb these crimes, we’ve got to have a road map for colleges and universities to increase responsiveness when crimes occur, better protect and empower students, and establish better-informed guidelines that actually have some teeth," Ms. McCaskill said in a written statement.

Like the previous bill, the new legislation would require colleges to designate "confidential advisers" to help victims of sexual assault, offer specialized training for anyone handling rape cases, and publish the results of "campus climate" surveys online. Campuses that violate the terms of the bill could face a penalty amounting to up to 1 percent of their operating budgets—a more realistic, and likely, punishment than the 100-percent funding loss that is currently threatened.

The issue of confidentiality is one of the most vexing problems colleges face when an assault is reported—how to ensure that students can speak to someone in confidence while still meeting a college’s legal-response and reporting requirements.

The bill would require colleges to designate confidential advisers to help victims of sexual harassment or violence, domestic abuse, and stalking. The advisers would provide information about support services and accommodations such as changing housing or class schedules, as well as reporting options. The decision of whether to report an assault to campus officials or local law-enforcement officials would remain up to the victim, although the adviser could help.

Some victims’ advocates have been alarmed by legislation, proposed in a few states, that would require anyone who learns of an assault to report the matter to the police. Legislators who back such changes say that mandatory reporting could ensure that matters aren’t swept under the rug, but some victims’ advocates say it could discourage victims from speaking out.

The bill calls for better coordination with local police departments. Colleges would have to sign memoranda of understanding, updated every two years, with local law-enforcement agencies spelling out each party’s responsibilities.

As in the earlier bill, colleges would have to use one uniform process for student disciplinary proceedings, rather than allowing athletics departments to handle theirs separately. Athletics departments are sometimes accused of looking the other way when a prized athlete is accused.

Colleges would also be required to provide a written notification, to the accused as well as the victim, of any decision to proceed with a campus disciplinary hearing within 24 hours of that decision. The notice would have to include details of the complaint, a summary of the disciplinary proceeding, and the rights and due-process protections available to both parties.

"It’s important for us to emphasize we are very focused on making sure there is also due process," Ms. McCaskill said at a news conference on Thursday.

Realistic Penalties

The bill contains what the authors consider a more realistic penalty for colleges that violate Title IX. The existing penalty, which, according to a news release, "is not practical and has never been done," is the loss of all federal student aid. The bill would introduce fines of up to 1 percent of a college’s operating budget. It would also increase fines under the campus-crime-reporting law known as the Clery Act, from $35,000 per violation to $150,000.

The revised bill would require colleges to publish a climate survey that gauges students’ experiences and perceptions of sexual violence every two years instead of every year, as the earlier bill had prescribed. Demands and guidelines for such surveys are coming from all directions these days, including the White House, the Association of American Universities, consulting firms, and the government’s settlements with colleges investigated under Title IX.

Despite assurances that the bill would be fair to everyone involved, some advocates on both sides found fault with it. "There’s nothing here that protects the fundamental due-process rights of the accused," said Joshua A. Engel, a lawyer who represents students who feel they have been unjustly accused of assault. That includes the right to effectively cross-examine an accuser and limits on the use of hearsay, he said. In addition, "You can have all the training you want, but if the people you’re training have insufficient experience in handling these cases, that’s not enough."

Meanwhile, Laura L. Dunn, executive director of SurvJustice, a nonprofit group that provides assistance to sexual-assault victims, objected to the designation of campus-based "confidential advisers," who she said should at the very least be required to tell victims that the advisers have a conflict of interest because they work for the college. Students might be discouraged from hiring off-campus advisers who could offer more effective, unbiased support, she said.

Joining the lawmakers were Annie Clark and Andrea Pino, survivors and founders of the group End Rape on Campus, as well as Scott Berkowitz from the Rape, Abuse, and Incest National Network.

"I do think with this version that the co-sponsoring senators are trying to better balance the bill between the rights of complainants and respondents, so that it has wider appeal to Congress," said Brett A. Sokolow, president of the National Center for Higher Education Risk Management, a consulting and law firm.

Sen. Kirsten Gillibrand, a New York Democrat and a co-sponsor of the bill, said the measure would fix problems that do a "disservice" both to victims and to those who are accused.

"The bill actually has clarified rights for the accused," she said. "Right now, the process that’s going on on college campuses serves no one. It doesn’t serve the survivor, it doesn’t serve the accused, and because there’s such a lack of training, a lack of clarity, and a lack of due process, it’s a broken system."

Correction (2/27/15, 11:53 a.m.): This article originally stated that demands for surveys that gauge students’ experiences and perceptions of sexual violence were the result of legal settlements. In fact they are the result of the Education Department's settlements with colleges investigated because of Title IX complaints. The article has been updated to reflect that.

Maddy Berner contributed to this article.

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.