Campus ‘Safety’ Bill Endangers Rape Prosecutions

(WOMENSENEWS)– Sen. Robert Casey, D-Pa., is leading a bill that he says will help fight sexual assault on campuses by requiring schools to take swift and strong action in response to gender-based violence on campus.

Bravo, right?

Wrong. The Campus SaVE bill is a wolf in sheep’s clothing.

It is cleverly worded to look good but if enacted as currently written, it will effectively destroy important provisions released last year by the Department of Education’s Office for Civil Rights.

On April 4, 2011, Vice President Joe Biden announced with unprecedented clarity and strong language the responsibilities of school officials whose job it is to enforce Title IX, a gender equity mandate that has long obligated schools to deal “promptly,” “equitably” and “effectively” with campus-based reports of violence “based on sex.”

Biden’s advisory–delivered in a so-called Dear Colleague letter–was a desperately needed affirmation of legal principles that comprise the doctrinal contours of Title IX’s guarantee of women’s equal access to education. The letter made it clear that non-compliant schools would be held accountable. A lengthy discussion of the points addressed in the letter soon followed and it was endorsed by dozens of advocacy groups across the nation.

Even before the letter was issued, the Office for Civil Rights had routinely enforced the points addressed in it, and the vast majority of schools were already in compliance. But a handful of schools openly refused to abide decisions that had been issued against other universities.

One example: A ruling requiring Georgetown University to apply a “preponderance of evidence” standard (about 51 percent proof) to sexual assault charges was often ignored or dismissed by other universities who claimed the ruling “only applies to Georgetown.” These schools continued to utilize a stricter “clear and convincing” standard (about 75 percent proof).

This significant disparity in application of the proper standard of proof, and piecemeal approach to Title IX enforcement, inhibited uniformity and effectiveness in sexual assault prevention.

Crucial Standard

The preponderance standard is crucial to the fair and equal treatment of women because it avoids the presumption, inherent in a higher standard of proof, that the word of a victim is always less weighty than the denial of an offender.

Despite the clarity on this point in the Dear Colleague letter, a small number of schools continued to resist the preponderance standard. They called it burdensome and unfair in matters involving violence “based on sex,” even though they enforce the same standard in matters involving violence “based on” race, religion and ethnicity.

Several schools agreed recently to amend their policies. The University of Virginia was forced to adopt the preponderance standard after a student filed a complaint with the Office of Civil Rights criticizing the school’s application of a higher standard. The University of Pennsylvania and Stanford University stepped up to embrace the preponderance rule in response to the Dear Colleague letter.

But a few schools are still dragging their feet, including Harvard Law and Princeton University, both of which are currently under federal investigation for multiple violations of Title IX, including application of the clear and convincing evidence standard.

A few influential schools have threatened outright noncompliance with the entirety of the letter on the grounds that a “letter” from the Department of Education is not an enforceable legal mandate. “It’s merely suggestive guidance,” they claim, which they can take or leave as they see fit.

In the face of this ongoing, if petty, reluctance to comply with the Dear Colleague letter, many groups that support the letter took steps to codify some of its key provisions in order to make it a congressionally enacted, enforceable mandate. They called the bill the Campus Sexual Violence Elimination (SaVE) Act, or the Campus SaVE Act.

The initial draft included language requiring schools to apply a “preponderance of evidence” standard, but that language was soon removed, effectively allowing schools to apply a standard of their own choosing.

Choosing a Standard

Schools that prefer the harmful clear and convincing evidence standard will gleefully use this change in the language to argue that because the preponderance standard was initially in the bill, and then removed, it can be inferred that Congress specifically intended to enact a law allowing schools the freedom to choose their own standard.

No doubt Harvard Law and Princeton officials are hoping the Office for Civil Rights investigations, which have been pending against them for more than 18 months, will continue to be delayed until Campus SaVE is enacted so they can point to Congress in defense of their decision to hold victims to an unfair burden of proof.

Other provisions in the bill will similarly undermine the value and impact of the Dear Colleague letter, and essentially erode the value of Title IX. For example, the bill allows schools to delay the “final determination” of a sexual assault complaint for years, literally until the eve of graduation. This will enable schools to violate Title IX’s “promptness” mandate while forcing victims to submit to an ongoing hostile educational environment and unequal access to education for the entirety of their college careers.

Women’s safety advocates have not aggressively criticized the removal of the preponderance standard, or any of the other problematic language in Campus SaVE.

One reason for this disturbing silence is that the bill includes “training” requirements for schools, which means advocacy groups will stand to collect paychecks if the bill passes. Silence can also be explained by the tacking on of the bill to the Violence Against Women Reauthorization Act (VAWA).

Although Campus SaVE was recently removed from the VAWA on jurisdictional grounds, advocates knew that raising a ruckus about the dangers of Campus SaVE would delay the flow of the VAWA funds, and no one wants that.

Failed Trainings

Co-optation is hardly a new tactic, but trading piddly funding streams for women’s fundamental civil and human rights to be free from gender-based violence in education is unacceptable, especially in light of data that show “training and education” initiatives have failed to make a difference.

One recent study found that when campus-based law enforcement officials were “trained” to better understand and respect the reactions of victims, they became even more biased against them. In fact, the training programs enabled officials to use the training to make unfair investigations look unbiased.

If enacted in its current form, either as a stand-alone proposal or tacked onto some other funding bill, the Campus SaVE Act will allow all schools, not just Harvard and Princeton, to ignore Biden’s advisory by claiming that a federal statute trumps a “letter.”

If Sen. Casey really cares about violence against women, as he claims, then he should reveal whether and to what extent certain elite schools’ lobbyists had a hand in redesigning the language of Campus SaVE.

He should also explain why he sponsored a bill that detracts from the Dear Colleague letter and threatens to expose women to even higher risks of gender-based violence in education by allowing schools to avoid compliance with Title IX.

The solution to pervasive, unequal and inadequate justice for campus sexual assault victims can be found in Title IX, but only if the law is effectively enforced. The Campus SaVE Act promises anything but.

Wendy Murphy is an adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She’s a former sex crimes prosecutor and author of “And Justice For Some.” An impact litigator who specializes in violence against women, Murphy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.