August 1 2014
The Campus Accountability and Safety Act, unveiled this week by Senator Claire McCaskill (D-Mo.) and seven other senators, has been widely hailed in the media as a bill “aiming at curbing” sexual assaults on campus.
We’re certainly in favor of curbing sexual assaults on campus, and the presence of sensible Republican Senators Chuck Grassley of Iowa, Kelly Ayotte from New Hampshire, and Marco Rubio from Florida on the dais with Senator McCaskill gave us hope that this would be a serious, bipartisan attempt to do just that.
Unfortunately, the bill falls short and seems guaranteed to take us further along a legally dubious and dangerous path. I refer to the erosion of due process for the accused. We’re very much for severe punishment of anybody found guilty of sexual abuse, but we also very much believe in due process. It is on the matter of due process that the McCaskill bill has attracted the strongest criticism.
The bill does contain some positive provisions, however, including mandating that colleges and universities bring law enforcement into the picture when there is an accusation. FIRE comments:
Mandating a formal relationship with local law enforcement is a small but necessary step towards ensuring that the expertise, experience, and resources of the criminal justice system are brought to bear on these investigations.
But a great deal of power in investigating offenses will remain in the hands of college officials. FIRE comments that these officials’ first loyalty is to their institutions. Not only do campus disciplinary systems lack expertise and legal safeguards for handling these accusations, it may actually be to the advantage of their institution to find the accused guilty, regardless of the truth. The results of these procedures must be reported, and no college is going to want to appear soft on sexual assault. There are indications that this is happening already.
KC Johnson, who first attracted national attention for his reporting on the Duke Lacrosse scandal, when Duke athletes were falsely accused of rape and tried in the media, spotted something interesting about the language of the bill:
Subsection 4 of the law enforcement section of the bill, however, contains a deeply troubling provision, requiring colleges to develop “a method of sharing [with law enforcement] information about specific crimes, when directed by the victim [emphasis added].”
First, at the point in the case covered by this subsection, there is no “victim”—there’s an accuser and an accused student. McCaskill’s word choice suggests that she and her colleagues believe that an accuser is automatically a “victim,” thereby abandoning the presumption of innocence for the accused. Second, the provision gives the “victim” authority over whether or not to share information with law enforcement.
It’s hard to imagine any accuser would “direct” her college to share information with police about the “specific crime” of filing a false report, if the college uncovered evidence that the accuser lied.
We’re glad that the issue of sexual assault is coming to the fore but we can’t help worrying about the atmosphere of hysteria that seems to be developing. In particular, we are concerned that the Obama administration is promoting what experts regard as enormously inflated figures regarding campus assault (here, here, and here). With false figures, we will likely get false solutions.
The failings of the McCaskill bill are a case in point. If Senator McCaskill had taken into consideration the legal rights of both parties, she might have produced a better bill.