California just passed a controversial campus sexual assault bill that does nothing to protect the due process rights of the accused. The White House is trying to push an equally biased sexual misconduct policy on colleges and universities across the country.
In April, the White House Task Force to Protect Students from Sexual Assault released a checklist for colleges to use in crafting new sexual misconduct policies. The task force notes, however, that even if colleges adopt all of these elements completely, they may be in violation of federal laws. Encouraging.
Most of the guidelines will do more harm than good, but it’s not all bad.
The good
1. Clear definitions
The checklist suggests schools provide a “clear statement” of their sexual misconduct policies and definitions of all conduct prohibited, such as “sexual assault,” “stalking” and “consent.”
2. Outlining procedures for handling sexual assault hearings
Perhaps the best part of the checklist is the suggestion that schools outline how to report an incident, how the investigation will be handled and how the hearing will proceed.
In many cases, the accused are unaware of how the disciplinary hearings will be conducted, what evidence will be allowed, whether they can have legal representation or the ability to cross-examine their accuser. The checklist suggests schools lay out the process, including how the appeals process will be handled.
3. Allowing accusers to move dorms or switch classes
This checklist does codify a “guilty until proven innocent” mentality for universities, but there is one point that would allow accusers to be the ones to move dorms or switch classes, instead of forcing the accused to do so.
The immediate removal of the accused from campus is the main element in assuming an accused student is guilty right from the start, so allowing accusers who feel threatened to remove themselves before the trial is a positive step.
4. Accuser and accused supposed to be treated equally during investigation
The checklist suggests schools “provide the respondent and complainant equitable rights during the investigative process.” That’s a great protection, even if the rest of the document seems to contradict that.
The bad
1. Instantly labeling accusers as “victims”
A common bias among all the campus sexual assault bills I’ve seen is the immediate labeling of anyone who makes an accusation as a “victim.” The White House checklist is no different.
The word “victim” appears eight times in the actual checklist and another two times in the introductory information of the document. The word “complainant” appears seven times in the checklist.
Meanwhile, the accused is referred to as the “alleged perpetrator” six times in the checklist but never “the accused.” They are twice referred to as “the respondent.” This shows a clear bias on the part of the administration against those accused before any investigation has been conducted. Such bias has already led to over 40 lawsuits from accused students claiming unfair treatment.
2. Assistance only provided to accusers
A large chunk of the checklist is dedicated to what services should be provided for the accuser, including contact information for counselors and identifying healthcare options.
These are good things for accusers to have, but there are no support services suggested for the accused. Often, students can be blindsided by such accusations and believes they are being wrongly accused. They can become depressed or even suicidal. They are also often banned from the campus except to attend class, meaning they wouldn’t have access to campus counselors or psychologists.
3. Leaves door open for “guilty until proven innocent” treatment of accused
As mentioned above, the checklist allows the accuser to change dorms if she feels threatened. But in the very next item on the checklist, the White House suggests schools describe other measures, such as “changing the alleged perpetrator’s living arrangements or course schedule.”
The goes back to the “guilty until proven innocent” mentality that permeates the climate currently, allowing anyone to have another student removed from campus just by leveling an accusation.
4. Unclear definition of consent
Although the checklist asks colleges to define “consent” clearly, the sample definition provided is anything but clear.
The definition is similar to the one just codified by California, and it stipulates that “past consent does not imply future consent” and “silence or an absence of resistance does not imply consent.”
The definition also says “someone who is incapacitated cannot consent” but doesn’t define just how incapacitated someone must be in order to be absolved of consent. The checklist mentions incapacitation due to drugs or alcohol. Without a clear definition, the door is open for anyone who has had just one drink hours before a sexual encounter to claim intoxication. Unless students carry around breathalyzers, they have no way to prove the other person was sober.
5. “Preponderance of evidence”
With the “preponderance of evidence” standard (that is, the standard that campus advisers have to be just 50.1 percent sure the accuser is telling the truth to convict a student of sexual assault), these hearings come down to a “he said, she said” trial. The accused likely cannot provide hard evidence of consent on the part of the accuser unless they videotape or a breathalyzer or brought in a notary. The accuser doesn’t need to provide any evidence beyond the accusation itself.
6. No guaranteed confidentiality for the accused
The checklist doesn’t provide confidentiality for the accused, meaning their name can be leaked to students on campus or to the media — even if they’re found not responsible. Such is the case of a Columbia student who was found not guilty, but had his name mentioned in the school paper. His accuser is now carrying around a mattress as performance art at his expense. Neither the police nor the school found any evidence he had assaulted the woman and yet still he was branded as a rapist.
7. Retaliation prohibited against accusers, not accused
There is to be no punishment prescribed for false accusations, which will likely result in false accusations going unpunished. But there are no protections in the checklist for the accused from retaliation. As in the Columbia case mentioned above, the student was retaliated against, even though he was exonerated.
