Credit: Montgomery County Planning Commission on Flickr, under Creative Commons
(WOMENSENEWS)-- I've already written about some of the problems with the Campus Sex Violence Elimination Act. But now that SaVE, as the law is called, is scheduled to take effect on March 7 this fight is getting serious.
I'm partnering with a group of activists around the country, including the "Godmother of Title IX" Bernice Sandler, to obtain a court ruling regarding the constitutionality of SaVE before it takes effect.
We hope to persuade a judge that aspects of SaVE are unconstitutional because they sweep away central provisions of a federal civil rights law that was designed to provide victims of campus sexual assault (and other forms of gender-based violence) with a means of holding offenders and schools accountable.
SaVE effectively overturns Title IX's longstanding regulatory mandate requiring schools to adopt "prompt and equitable" policies and procedures to ensure effective justice for victims of gender-based violence.
The law was introduced to Congress in April 2011 and at first SaVE looked good. Soon after the bill was filed, however, several good provisions were removed and harmful provisions were added.
When the harmful changes were made, advocates started to object, after which SaVE was slipped into the Violence Against Women Reauthorization Act. Since VAWA is a big funding law, the move silenced many groups that desperately needed to see it passed to get VAWA money.
Some argue that SaVE doesn't hurt Title IX because it amended the Clery Act, not Title IX itself. But this view is silly because Congress has wide authority to amend any federal law, indirectly, by changing a different but related statute. It's a sneaky way to reform laws without provoking those who will be affected by the harmful changes.
One of the most significant changes involves the elimination of the word "equitable." An early iteration of SaVE promised to codify the regulation that mandated "equitable" treatment of violence against women, but the word was subsequently eliminated from the bill. This removal of the word "equitable," in conjunction with other changes, means that schools can, and in some cases must, subject violence against women to worse legal standards compared to violence that occurs on the basis of other protected class categories, such as race, color and national origin.
Left Open to Interpretation
Some have argued that removal of the word "equitable" in SaVE doesn't require schools to be "inequitable." However, well-settled statutory construction law doctrines hold that when Congress inserts and then removes a word, courts will infer that the original intent was to mandate "equitable" treatment, but that Congress subsequently determined that equity is not required.
Congress similarly included and then removed a requirement that schools apply a "preponderance of the evidence" (about 51 percent) standard of proof when assessing evidence in matters of violence against women. As with removal of the word "equitable," by inserting and then removing the preponderance standard, Congress has granted schools authority to apply a much more rigorous standard, such as the criminal law burden of proof "beyond a reasonable doubt" (about 95 percent).
Preponderance is the only option that treats the word of a victim as equal in weight to that of her assailant. Its removal, especially alongside removal of the word "equitable," leaves schools free to assign less weight to the word of a woman compared to that of her attacker. This will make it much more difficult for victims to establish their claims.
For students who endure violence on the basis of other protected classes (religion, race, ethnicity, age or disability), the law still requires schools to adhere to a standard of "equity" and apply a "preponderance of the evidence" standard. Thus, SaVE puts violence against women in a segregated legal space, subject to much weaker legal protections.
To the extent proponents argue that SaVE doesn't undermine Title IX because it only regulates violence not rising to the level of a civil rights violation (not "severe or pervasive"), they should remember that SaVE was offered up as a codification of a "Dear Colleague" letter, announced by Vice President Joe Biden in April 2011; a letter that only addressed Title IX and the proper of means of complying with Title IX when schools respond to violence against women on campus.
No Time Limit on Responding
Another problem with SaVE: It imposes no time limit on when a "final determination" must be made in response to a victim's complaint. Though SaVE expressly requires "promptness" in the investigation and initial resolution phases, it then allows schools to overturn that decision and render a "final determination" as late as the day of the victim's graduation, if at all, because under SaVE "final determinations" need not be "prompt."
Historically, the most important legal principle that ensured the effective redress of violence against women was the Title IX regulation requiring schools to adopt and enforce "prompt and equitable" policies and procedures. After SaVE, neither promptness nor equity is required.
Without promptness and equity, victims will be forced to obtain their education in the midst of hostility and inequality, which inhibits effective learning and explains why so many student victims quit school after reporting sexual assault. Before SaVE, students at least had the right to file complaints with the Office of Civil Rights at the federal Department of Education on the grounds that a school's response was not equitable or not prompt. After SaVE, students will have less access to the Office of Civil Rights when their complaints are handled in a non-prompt or inequitable manner.
Another reason to fight SaVE is that it authorizes schools to delay notifying victims of a change to the initial decision until after the change has already been made. Schools can literally refuse to notify a victim of a "change" to the initial decision until as late as the day of her graduation, if at all.
This means a victim whose rights were violated in connection with the "final determination" process, but who does not receive notice of such violation until after the legal injury occurs (as late as the day of graduation) has no opportunity to protect her rights or to seek outside review and enforcement from the courts or federal and state oversight agencies. Simply put, one can hardly achieve equal access to education after graduation.
Needless Burden, Delay
SaVE also provides that the secretary of education "shall seek the advice and counsel of the attorney general of the United States and the secretary of health and human services…" when "preventing and responding to" violence against women. This adds a needless burden and additional delay to the redress of violence against women compared to violence on the basis of other protected class categories. Similar "advice and counsel" is not required when schools respond to matters involving violence on the basis of other protected class categories such as race, religion and national origin.
One more disturbing section in SaVE authorizes schools to take no action to address violence against women unless such violence is actually reported to school officials or law enforcement officials. (While a victim must show "actual knowledge" in a real world civil damages action, a "knew or should have known" standard had always been sufficient prior to SaVE for administrative redress through campus grievance procedures and federal oversight agencies.) By contrast, in matters involving violence against other protected class categories, schools are mandated to respond, even in the absence of an actual report, when officials know or should know of such violence.
SaVE also authorizes schools not to publicly report statistics under The Clery Act regarding rape and sexual violence unless such violence causes "bodily injury." This provision subjects such violence to inherently unfair standards because a substantial percentage of rape and sexual assault does not cause "bodily injury."
State Criminal Law Standards Applied
Finally, in a truly shocking expression of disrespect for women's safety and equality, SaVE requires schools to apply state criminal law standards when determining whether a federal civil rights violation occurred, thus subjecting the redress of violence against women to inherently unfair and less protective legal standards compared to violence that occurs on the basis of other protected class categories.
For example, before SaVE if a woman was raped on campus, she could prove the offense under Title IX by showing simply that the conduct was "offensive," "based on sex" and "unwelcome." After SaVE, that same victim will have to prove her case under much more onerous state criminal law standards that, in almost all jurisdictions, require proof of "penetration," "without consent" plus "force." The difference between "unwelcome" and "non-consent" is particularly important because so many campus-based sexual assaults involve a dispute over whether the victim consented and the civil rights standard of "unwelcome" is much easier burden to prove compared to the rigorous state criminal law definition of "non-consent."
The redress of all other forms of targeted violence is not assessed under state criminal laws standards, and will continue to be assessed under federal civil rights standards.
Requiring state criminal law standards also violates core principles of federalism by subjecting the redress of violence against women to as many as 50 different state standards such that students in some states will be better protected from violence than students in other states depending on how the behavior is defined in the respective state's criminal code.
Bottom line: SaVE is aptly named because it will "save" schools from meaningful oversight and accountability when they ignore gender-based violence and disrespect women who dare to report it.
Now women have to band together and ask the courts to prevent SaVE's harmful provisions from taking effect. Members of Congress and all the advocates who lobbied for SaVE should have the courage to admit they were duped into supporting a Trojan Horse.
Wendy Murphy is a professor of sexual violence law at New England Law|Boston. A former sex crimes prosecutor, Murphy has written numerous law review and pop culture articles on violence against women and children. Her first book, "And Justice for Some," was released in hardcover in 2007 and came out in paperback earlier this year.
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