There was little discussion of due process rights in campus adjudications during a Wednesday hearing on campus sexual assault.
As expected, the one-sided hearing of the Senate Health, Education, Labor and Pensions committee focused on how to make reporting easier for sexual assault accusers — which is very important — but failed to address the very real problem of false accusations. Typical statements from senators and other panelists consisted of long discussions about providing help for accusers, with a passing statement about ensuring a fair process tacked on at the end.
Most of the senators present — including Sens. Kirsten Gillibrand, Claire McCaskill and Patty Murray – continually referred to accusers as "victims" or "survivors" and the accused as "accused," "alleged perpetrator" or "rapist." This, like the language of the Campus Accountability and Safety Act, imposes a clear bias.
Gillibrand and McCaskill also mentioned having spoken to accused students and their families, making it seem as though their concerns were included in the bill. They were not. The senators may have listened, but they certainly didn't hear.
Sen. Dean Heller, R-Nev., noted during his opening remarks that more than 100 schools are under investigation for failing to adequately address sexual assault accusations. He made no mention of the more than 70 accused students who are suing their schools for violating their due process rights.
During her opening remarks, Gillibrand explained that sexual assault is a "violent felony" that needs to be taken seriously.
"Every day, it's becoming increasingly clear that too many schools are failing because they do not take sexual assault seriously enough. They do not see it as the violent felony that it actually is," she said. "They do not treat these as life-altering assaults and they do not treat them as violent crimes."
Schools aren't being told to take these crimes seriously. They're being told by Gillibrand and others to treat these "violent felonies" as mere disciplinary measures where the worst punishment a "violent felon" could face is an expulsion allowing him to prey on non-students. If these really are the "violent felonies" Gillibrand claims, then these terrible people need to be off the streets.
Of course, most of these are not "violent felonies" but instead complex cases involving drunk college kids who get accused after one student regrets the encounter days, weeks or months later (and often after speaking with college feminists). Typically, what takes place is not a cut-and-dried, obvious rape, but rather a he said/she said situation fueled by alcohol and lacking any evidence.
The panel's U.S. senators were not asked any questions and left after reading their prepared remarks.
When asked about how "yes means yes" policies empower accusers, University of California president Janet Napolitano responded that they "shift the burden of proof," essentially turning the justice system on its head.
"It really, in a way, shifts the burden, so that the survivor isn't the one always trying to explain what happened," Napolitano said.
There was a discussion of whether law enforcement should be included in the process and just how much college hearings should be like criminal courts.
Dolores Stafford, the executive director for the National Association of Clery Compliance Officers, responded by claiming colleges should be "an alternative" for students not wanting to go through the criminal justice system.
"I think there's a reason for a campus process and I think campuses certainly have a place in the process, I don't want to see them become law enforcement agencies," Stafford said. "I think students have the right to choose whether or not they want to [prosecute] — to move forward with pressing charges, and if they do, law enforcement's there for that. I think the campuses provide an alternative for students as far as the disciplinary process … so I fully support not making campuses try to take the place of law enforcement."
"Law enforcement has a specific place and they will do their job if called upon to do it," she added.
Of course, law enforcement's job is to investigate those "violent felonies" Sen. Gillibrand talked about.
Napolitano chimed in, saying: "The goal of the disciplinary process if different than the criminal process." She did suggest "greater linkage" between campuses and law enforcement.
There really isn't a difference between the disciplinary process and the criminal process. Both are allegedly fair investigations of what is ultimately a crime and which result in punishments that could alter a person's life greatly. The only difference is what incentives are involved — for the criminal process, justice is supposed to be the ultimate goal; for campus courts, looking tough on sexual assault to appease the Obama administration is the ultimate goal.
And to achieve that goal, campuses have eviscerated due process, broadened the definition of sexual assault and narrowed the definition of consent to find as many accused students "responsible" as possible.
Fairness and due process were rarely mentioned. Sen. Bill Cassidy, R-La., was the first senator to bring up due process. He told the story of a woman he had spoken to who believes she had been wrongly accused. Cassidy asked how schools could better address the rights of the accused.
Napolitano jumped in, saying "we're actually looking in to that right now." This would seem to indicate that such rights were not considered previously — certainly not last year when she convened a task force to address the issue of campus sexual assault.
The University of California, over which Napolitano presides, was recently excoriated by a federal judge for providing students with an "unfair" hearing. Perhaps that is why Napolitano is "now" looking into due process rights.
When Tennessee Sen. Lamar Alexander, chairman of the Senate HELP committee, asked the panelists how to ensure a fair hearing is held involving an accusation of sexual assault, a noticeable six-second silence followed.
Napolitano again mentioned that UC was "looking into" the issue of due process rights, but the way she talked about what those rights should look like was dismaying.
"It does illustrate the difference between a student disciplinary proceeding and a criminal proceeding," Napolitano said. "The confrontation rights, for example, they should be different for students."
She also mentioned that her school was "going through that right now," an allusion a recent case in which a California judge ruled that the university provided an inadequate procedure for cross-examination. The student was allowed to submit questions only before the hearing, and the hearing panel decided which questions to ask, leaving out questions that would challenge the accuser's side of the story. The panel also provided no follow-up questions and allowed the accuser to avoid answering by claiming the questions were irrelevant.
Sen. Sheldon Whitehouse, D-R.I., also addressed due process and the use of law enforcement, reminding panelists that these campus adjudications can be used in future criminal court proceedings. Whitehouse also explained that past failures by law enforcement should not be an excuse to exclude them from the campus process now.
"I think the fact that law enforcement has done a lousy job on occasion is not a reason to keep law enforcement out," Whitehouse said. "It's a reason to improve law enforcement in this area."
Whitehouse suggested involving law enforcement at an early stage of the investigation and better informing accusers about such an investigation.
Despite the few minutes dedicated to due process at this hearing, the issue is gaining some ground.
Three Republican House members introduced a bill, the Safe Campus Act, Wednesday morning aimed at giving accused students more due process rights on college campuses. The bill, sponsored by Reps. Matt Salmon, Pete Sessions and Kay Granger, would give both accusers and the accused the right to hire an attorney at their own expense (of course, the accuser would still have the entire Title IX office behind her).
The bill would also stop campus administrators from investigating a serious crime if the accuser refused to go to police. Colleges would also be required to inform accused students of the charges and evidence against them. In addition, the bill would repeal the "Dear Colleague" letter that led to much of the mess colleges are currently in when it comes to adjudicating campus sexual assault.
"The due process protections provided by the Safe Campus Act would enhance the reliability of campus proceedings and lend sorely needed credibility to their findings," wrote Joseph Cohn, legislative director for the Foundation for Individual Rights in Education. "One key feature of the bill would encourage victims to report allegations to law enforcement professionals by making it a prerequisite for requesting a campus disciplinary hearing."
He added: "Sexual assault is a serious crime. Allegations of sexual assault should be investigated by impartial, trained law enforcement officers with the necessary skill and expertise to reach just conclusions, and the punitive power to hold those convicted accountable to the victim and society."
It is unclear when, or if, a Senate version of the bill will be introduced.