BOSTON (WOMENSENEWS)--The bipartisan Senate bill on campus rape introduced at the end of July sounded OK if you just listened to the sound bites and quick media summaries that followed. But after reading all 38 pages of the legislation, I say let's dunk it and start again.
The Survivor Outreach and Support Campus Act, or SOS Campus Act, is another hodge-podge piece of legislation that takes the fight for female students' civil right to safety from sex harassment off course.
This act is just as dastardly as the Campus SaVE law, which took effect in March.
Before anyone in the U.S. House of Representatives decides to introduce a companion bill (Rep. Carolyn Maloney, I hope you're listening) I hope they'll refocus on a simple law designed to do one of either of two things:
Codify explicit civil rights equity on the basis of sex for the redress of harassment and violence alongside other protected categories such as race and national origin, as Harvard has recently done.
The SOS bill has some good parts but is alarming in many respects.
It allows "confidential advisors," for instance, to "inform" victims that they need not report a sexual assault to anyone and, shockingly enough, that they need not cooperate with civilian or campus-based law enforcement officials. This is just creepy.
Why would Congress put into federal law the idea that reporting can be deterred when the biggest problem has been extremely low reporting rates; lower than rates in the real world and even in the hyper-masculine environment of the military?
Another provision requires civilian law enforcers to join schools in a way that can subject them to school confidentiality laws such as The Family Educational Rights and Privacy Act. Police departments that refuse to sign such an agreement will be reported to the Department of Justice.
This is dangerous because it will require public officials to keep their information confidential and require real-world police departments to act as agents of the schools, which will inhibit not only reporting rates but also the ability of parents, the public and outside agencies to hold schools accountable or ascertain the true numbers in terms of incidence and prevalence rates. Why would any victim find comfort in reporting to off-campus police if she perceives them to be in mandatory cahoots with her school as required by federal law?
Even More Immunity for Schools
The bill also gives schools the added immunity of not being required to deal with any matter that is not formally "reported" and it ensures that reports will be rare because the "confidential advisors" are expressly not considered agents of the school for reporting purposes such that the advisor's awareness matters in terms of the school being "on notice" either for redress or liability purposes.
In other words, this bill allows schools to "know" about sexual assault and do nothing.
Before the SaVE law came along, and certainly prior to this bill, schools were obligated to provide redress under a "knew or should have known" standard. That was terrific because it meant anonymous complaints and reports from third parties would lead to effective and equitable response and, importantly, liability exposure in the absence of such response.
This new bipartisan proposal led by Sen. Claire McCaskill, the Missouri Democrat, forgives schools any obligation to do anything even when a responsible school official has actual knowledge, unless a formal report is filed. Most disturbingly, while the bill references Title IX, it nowhere uses the phrase "civil rights" to describe the interests at stake – nor does it include the essential language typically included in laws that could affect civil rights, such as: "nothing herein shall be construed to weaken or affect existing civil rights laws, including Title IX." That is a major (and intentional) defect in SaVE, too.
Bottom line: We cannot have Congress messing around with the essential idea that when it comes to redressing sexual violence on campuses, women have a civil right to safety and equality.
When sexual assault occurs in the off-campus world, women have police, prosecutors and courts where they can and should pursue assailants on criminal charges. But on campus they have a civil right, under Title IX, to demand that school administrators provide a learning environment free from harassment and violence "on the basis of sex." People often confuse and conflate criminal law with civil rights laws in this context, but the differences are critically important, and have been clear to advocates like me for many years.
Sex Safety and Civil Rights
In 2006 I wrote the first law review article connecting campus sexual assault to civil rights laws, such as Title IX. The article arose out of a case I'd filed against Harvard in '02 with the Office for Civil Rights at the Department of Education to force Harvard to change its sexual assault policies because they were, at that time, profoundly unfair to women. Harvard had recently adopted a new rule requiring victims to produce "independent corroboration" as a prerequisite to redress. That effectively declared a victim's own word inherently inadequate to merit and form of redress, much less sanctions against her attacker.
That case, and my article, moved campus sexual assault into the public consciousness and made clear for the first time that sexual assault was a civil rights harm that must be addressed with "promptness" and "equity" under Title IX, the 1970s law ensuring that girls and women had equal access to education at schools that received any federal funds. Before that '02 case against Harvard, Title IX was widely misunderstood as only a sports equity rule for girls and women in college and high school.
In 2011 the Department of Education issued "global guidance" further clarifying and emphasizing the relationship of Title IX to sexual assault. That guidance was issued in response to newer cases of mine that had been filed with the Office of Civil Rights in the fall of 2010. Known popularly as the April 4, 2011, "Dear Colleague Letter," the guidance clarified the steps all schools were required to take to ensure that violence against women was redressed as a civil rights problem under Title IX, pursuant to "prompt and equitable" policies and procedures.
Days after the "Dear Colleague Letter" was announced, however, the SaVE Act was filed. Initially "sold" to advocates as a law that would "codify" the "Dear Colleague Letter," its good provisions were soon replaced with language that would weaken Title IX. When advocates complained, SaVE was tacked onto the VAWA (reauthorization) and almost everyone went silent because they needed the money.
SaVE was signed into law in March 2013 and took effect one year later.
I put my head together with Bernice Sandler (the "Godmother of Title IX" who calls me its "goddaughter") to design a lawsuit that might stop SaVE from being enforced.
She and I spent months preparing the lawsuit. It particularly implicated Harvard Law School and the University of Virginia because investigations that I'd filed against both schools with the Office for Civil Rights had been pending for a long time. If those investigations were resolved under pre-SaVE standards, we would win, but if resolved under post-SaVE standards, we would lose.
Along with Attorney James Marsh, I filed suit in Washington, D.C., against the Departments of Education and Health and Human Services to block enforcement of SaVE right before its effective date of March 7.
The judge approved our lawsuit to proceed on March 6, 2014. (We did not ask the court to block enactment because schools were not, at that time, required to enforce SaVE. Related regulations were still being developed and schools were not obligated to change their policies until after the regulations were approved, which would not occur for many months.)
Soon after we filed suit, President Barack Obama in April announced that he saw a need for "corrective" legislation. Press reports characterized the president's announcement as coming in response to highly publicized cases of campus rape. But I inferred –given the timing of his statement--that he was referring to the need for Congress to fix the constitutional problems with SaVE that we identified in the lawsuit.
It made no sense for the president to otherwise call for new legislation given that he had, only weeks earlier, celebrated SaVE's enactment as the proper response to highly publicized cases of campus rape. When McCaskill then convened hearings on campus sexual assault I was heartened.
I hoped all the high-profile political and media attention meant we were on the road to legislation that would moot our lawsuit by fixing SaVE in all the ways we had identified in our lawsuit and that would ensure SaVE did not violate women's equal protection and due process rights.
I was wrong. McCaskill's proposal is a sneaky attempt to enact yet another bill that sounds good but that, if enacted in its current form, will further obfuscate and reduce schools' legal responsibilities, undermine women's equality and safety and exacerbate rather than fix SaVE's problems.
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 was recently updated and re-released in paperback.
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