Critics Spot Dangers in a Campus Safety Bill

(WOMENSENEWS)—This month, the Campus Accountability and Safety Act, or CASA, will go to the Senate floor for a vote. Sponsored by U.S. Sen. Kirsten Gillibrand, D-N.Y., the bill comes to the floor amid concern that campus rape has become a national epidemic as schools are often accused of evading their responsibility to investigate and punish the crime.

The bill has attracted a large bipartisan roster of Senate co-sponsors and many enthusiastic supporters among women’s safety activists.

Some dissident voices have also been raised, including that of Wendy Murphy, a former sex crimes prosecutor and contributing editor to Women’s eNews.

“The saddest part of the story,” Murphy said in an email, “is that established women’s and victims’ groups are supporting these terrible laws either because they don’t know any better or because they think there’s new money to be made in useless ‘training and education’ programs, and contracts to provide ‘confidential’ advisory services. It’s classic co-optation.”

Murphy has been a pioneer in applying Title IX of the civil rights law to women’s right to equitable redress on campus in response to sexual assault.

Title IX stipulates that no one “on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Murphy said CASA sounds reformist, but actually will undermine women’s ability to hold schools accountable for violations of their civil rights. The bill, in Murphy’s view, also will make it harder for prosecutors to press charges.

Others in Opposition

The American Council on Education, based in Washington, D.C., a leading lobby for higher-education, also opposes the bill, but for reasons Murphy calls different from her own. The group has sent a 12-page letter to the Senate explaining their objections to CASA, which include its “one size fits all” approach to different types of schools and vague legislative language. Thirteen other associations of colleges and universities co-signed.

Two Title IX experts with law enforcement backgrounds did not want to join a public discussion about the bill but told Women’s eNews privately that they also have doubts about CASA.

One of them said those doubts were shared by others who agree the bill is well-intentioned, but ill-informed. CASA, she added, cannot work well because colleges are set up to educate and therefore are ill-equipped to deal with the complexities of sex crimes and their adjudication.

Women’s eNews made three attempts to interview Gillibrand’s legislative assistant about criticisms of CASA but received no response. Earlier this week, Gillibrand was tweeting her support for passage of the bill.

Campus Accountability & Safety Act will flip incentives so colleges no longer sweep sexual assaults under the rug: http://t.co/CjvDFyPQAS

— Kirsten Gillibrand (@SenGillibrand) June 15, 2015

Attention to the seriousness of campus rape, a problem long overlooked, is growing, including internationally.

In a recent visit to Women’s eNews’ offices, a delegation of journalists from India said the U.S. campus rape statistics are alarming for parents in India who consider sending their daughters to the United States for college.

The White House Counsel on Women and Girls estimates that 1-in-5 women is sexually assaulted while pursuing a college degree. Just last Friday, another study by the Washington Post-Kaiser Family Foundation confirmed that finding.

Last month, a study published in the Journal of Adolescent Health, conducted at a private university in Gillibrand’s upstate New York, found that 19 percent of freshmen women – nearly 1-in-5 — had been subjected to attempted or completed rape.

Violation Cuts Funding

Title IX stipulates that schools found in violation of students’ civil rights, including safety and protection from sexual assault, can forfeit all federal funding.

So far, no campus has forfeited that funding, although the U.S. Department of Education is investigating 55 schools for possible Title IX violations.

Nonetheless, Murphy said agencies such as the Office for Civil Rights at the Department of Education have important oversight authority to force schools to comply with Title IX.

She said CASA–in conjunction with another recently enacted federal law, Campus SaVE, or Sexual Violence Elimination Act–will effectively strip the Office of Civil Rights of much of its ability to enforce Title IX on any campus.

Most significantly, Murphy said, these laws will prevent the Office of Civil Rights from ever reviewing a school’s mishandling of gender-based violence because the violations of victims’ rights would fall under the provisions of Campus SaVE and CASA.

Victims, she said, can only seek recourse with the Office of Civil Rights if their case on campus is handled, start-to-finish, under Title IX.

“I filed tests cases in every OCR jurisdiction last summer on behalf of women as a class, to prove this point,” Murphy said. “I argued that certain schools’ policies complied with SaVE but not Title IX, and that the SaVE policies violate Title IX because they are much more onerous on victims than the Title IX standards. In every single case, I received a decision letter from OCR saying they have ‘no jurisdiction’ to review any violations of victims’ rights when a school applies generic ‘sexual misconduct’ policies, rather than Title IX‘s fully equitable policies, when redressing gender-based violence on campus.”

Little Being Done

Meanwhile, schools are doing little to confront what is being called an epidemic. About 40 percent of 440 surveyed colleges had not carried out a sexual violence investigation in five years, a recent survey found.

Authors of a study that found a serious under-reporting of the problem suggested that CASA might be corrective, particularly the provision that substantially raises the fines against schools for “undercounting” cases.

Murphy disagrees, saying CASA provisions give schools wiggle room to minimize or evade reporting. For instance, she describes a provision that allows higher fines on colleges that fail to properly count incidents as a meaningless threat. “The fine could be a million dollars, but because CASA and SaVE prevent external oversight to prove undercounting, fines designed to deter undercounting are meaningless,” Murphy said.

Murphy also objects to a provision enabling victims to file reports only with “confidential advisors” and “counselors” who are under contract with or designated by schools. That process, she said, “leads to total invisibility – hence gross undercounting of raw numbers, as well as numbers of civil rights violations – because it will be impossible to prove whether ‘confidential’ advisors failed to correctly count incidents – or even misled victims to frame their experiences incorrectly as ‘generic’ sexual misconduct rather than a federal civil rights injury.”

CASA, in Murphy’s view, will worsen undercounting and non-reporting problems by establishing confidentiality agreements (described as “memoranda of understanding”) between schools and law enforcement.

“It used to be that the public could hold schools accountable for undercounting by examining public records, such as police logs and police reports, but that will no longer be possible under CASA because police reports will become confidential,” Murphy said. “CASA creates frightening degrees of secrecy that will literally make it impossible to know whether cases are being mishandled and miscounted.”

Empty Threat

With those two provisions in mind, she said the bill’s threat to impose higher fines on colleges that fail to report rape is empty.

“The fine could be a million dollars, but if schools are allowed to undercount, then obviously fines designed to deter undercounting are meaningless,” Murphy said.

Lauren Passalacqua, Gillibrand’s press secretary, emphasizes that CASA puts schools under the threat of much larger fines for undercounting. “The largest fine is [currently] $350,000,” Passalacqua said in a phone interview. “With the bill, there will be an increase of 1 percent of the school’s operating budget. Currently, schools have no financial incentives to protect students, and it is cheaper for them to pay the fine.”

Laura L. Dunn is a lawyer and campus gang-rape survivor who is founder and executive director of SurvJustice, a nonprofit based in Washington, D.C., that works to reduce sexual violence. Dunn said SurvJustice does not support CASA at this time. Among other reasons, a statement from her organization notes that CASA‘s transparency requirements for schools do not include the Clery Act, named for Jeanne Clery, a freshman raped and killed in 1986 by a fellow student at Lehigh University.

Said Dunn: “CASA is treating the two laws differently and only emphasizing transparency around Title IX (which covers sex discrimination, sexual harassment and sexual violence) rather than including the Clery Act (which overlaps on sexual assault but also covers other gender crimes).”

SurvJustice also notes that the 2013 reauthorization of the Violence Against Women Act, or VAWA, requires college and universities to use the updated definition of rape from the FBI’s Uniform Crime Report as a gender-neutral offense. CASA, however, allows schools to select between two definitions of campus crime, one of which limits rape to a crime against women. That leaves out male and transgender victims. The transgender community suffers a high incidence of rape.