There are two rival bills in Congress addressing campus sexual assault. A nominally bipartisan bill spearheaded by Democrats Claire McCaskill and Mark Warner focuses on heaping more requirements on schools to turn their disciplinary systems into witch-hunts. Republicans in the House of Representatives, meanwhile, have introduced a bill that tries to balance protecting women from sexual assault with protecting the rights of those who have been accused of this horrible crime.
Right now, absent the case of a star athlete who the school needs for a championship shot, if a school receives a complaint by someone alleging sexual assault it has every incentive to find the male student guilty, regardless of what actually happened.
On the one hand, if the man is found not responsible – perhaps because he didn’t actually commit a sexual assault – the school can be sued by the woman, investigated by President Obama’s overly aggressive Department of Education, and publicly shamed.
For a quick example of these risks, look no further than what Emma Sulkowicz did to Columbia University. She alleged she was sexually assaulted. After reading numerous texts and Facebook messages from her that severely undermined her credibility, a campus panel exonerated the man she accused. So she staged a year-long protest by carrying her mattress around campus, which got her invited to Obama’s State of the Union address and forced Columbia to endure months of negative public attention. All for having a panel that took seriously its job of looking objectively at the evidence!
On the other hand, if the man is found responsible, there’s some risk of a lawsuit, but even then the school can use that as a vehicle to tout how much it’s doing to protect women because it will fight in court to defend its system.
Into this imbalance steps the Warren/McCaskill bill in the Senate. That bill would require schools to provide an advisor to women who are bringing rape allegations so that they can most effectively present their side of the story in a disciplinary hearing. It would also require schools to ask students whether they think their school is doing enough to combat campus sexual assault. In other words, fairness is now decided by a plebiscite of 18-year-olds. The Senate bill requires the adults to leave the room.
By contrast, the House Republican bill balances protecting women who have brought sexual assault charges with some protections to make the process fairer to men who have been accused. The bill gives men who are accused some basic protections that should be uncontroversial – the right to know what the charges are, to know what the evidence against them is, and to have a lawyer if they can afford one.
It also gives women who bring these charges the option of filing a complaint and starting a disciplinary proceeding – which would require that the case be referred to law enforcement – or not. If the woman decided that she didn’t want the case to go to law enforcement, the school could still put in place measures to keep the two students separate.
Requiring a law enforcement referral for there to be school discipline is an interesting response to those who think a finding that someone was responsible for a sexual assault should stay on the student’s transcript forever. If someone really is a sexual predator, they should be marked with a criminal conviction, not a transcript note. And if we’re going to mark people for the rest of their lives, we should give them the protections that we give people in our criminal courts. But that shouldn’t – and under the House bill doesn’t – require schools to abdicate a reasonable concern about keeping an accuser and accused separate.
For too long, the conversation around campus sexual assault has been long on rhetoric and short on reason. Politicians grubbing for attention have let slanted marginal horror stories drive bad policy. This is no way to decide an issue as important to the lives of our country’s college students.
We should all be able to agree that women shouldn’t be sexually assaulted and that men who are accused of sexual assault should be treated fairly. Yet that simple idea – supported by the House Republican bill – has been lost.
The response to the House Republican Bill has been predictable. Susan Merriman, a spokeswoman for SAFER Campus, a national advocacy group that supports the Warner/McCaskill Senate bill was frank about how she doesn’t care about basic fairness:
“We are not at a point to analyze ‘due process,’ when many survivors are publicly shamed on their campuses, when charges against assaulters can be dismissed out of hand by administrators, when an assaulter is allowed to sit across from a survivor and shout down their story.”
The Senate bill would codify this kind of self-righteous disregard for fairness. The measured bill by the House Republicans would balance safety and fairness in a responsible manner. One bill makes for a good press conference; the other makes for good law.
Matt Kaiser and Justin Dillon are partners at Kaiser, LeGrand & Dillon PLLC in Washington, D.C., and have represented dozens of students nationwide in campus sexual assault cases.
