Presumed guilty
Campus sex assault bill flattens due process
merica’s college campuses have long displayed contempt for the First and Second Amendments of the U.S. Constitution. Now Congress is prepared to pass legislation that tramples students’ Fifth and Sixth Amendment rights as well.
Harrowing allegations of sexual assault at colleges, as well as the lack of support some colleges provide to accusers, have become national news stories. These cases have prompted agitators to denounce the “rape culture” behind booze- and drug-fueled parties and colleges’ refusal to do anything about it. Universities have responded to this pressure by performing their own investigations into criminal allegations and taking action outside local and state justice systems — even when authorities declined to prosecute.
Enter Congress. In the past couple of weeks, three bills have been introduced to address campus sexual assault, the most noteworthy of which is the Campus Safety and Accountability Act. But far from ordering colleges to honor the Constitution, the bill turns the Bill of Rights upside down by favoring the interests of the accuser over the rights of the accused, assuming a crime has taken place instead of determining whether a crime took place.
The bill’s summary calls accusers “survivors” and would allow the government to fine colleges up to 1 percent of their operating budgets — many millions of dollars for large institutions — for failing to properly investigate and report a sexual assault allegation. So what constitutes a proper investigation? The guilty-until-proved-innocent model of justice already employed by university disciplinary panels, often under a definition of sexual assault that’s stretched well beyond statute, at the behest of the U.S. Justice Department. In an article for the website Minding the Campus, K.C. Johnson, a due-processadvocateandhistoryprofessoratBrooklynCollege and the City University of New York Graduate Center, wrote that in the past three years at Yale alone, several students were found culpable for sexual assault under “informal complaint” procedures that provide no way for an accused student to present evidence of innocence. And in a “formal complaint” at Yale, the accused cannot have an attorney as part of the process.
Such proceedings have resulted in students being disciplined or expelled without seeing any evidence, without having the ability to defend themselves, without ever facing their accuser, even when state and local law enforcement agencies have refused to prosecute. In some instances, even the accuser has declined to pursue the case. Universities know that clearing the accused will invite federal scrutiny, while handing out harsh punishments could avert a crippling fine.
Former University of North Dakota student Caleb Warner can attest to as much. He was banned from campus in February 2010 after being convicted of sexual assault by a university tribunal. Law enforcement officials ultimately charged Mr. Warner’s accuser with making a false report, yet North Dakota continued to uphold the ban and deny the falsely accused Mr. Warner a rehearing, only overturning the ruling 18 months later following pressure from the Foundation for Individual Rights in Education.
Congress has been pushed to act based largely on an oftcited statistic that 1 in 5 women have been victims of campus sexual assaults, and that only 12 percent of assaults are reported. That led the American Enterprise Institute’s Mark Perry to investigate. He found that between 2009 and 2012, 98 sexual assaults were reported at Ohio State University; if only 12 percent of assaults had been reported, 817 total incidents would have been a more accurate figure. With a female enrollment of 28,000, 2.9 percent of Ohio State’s women would have been sexual assault victims.
One sexual assault is too many, and there is no doubt that sexual assaults occur on college campuses. But when Congress writes and votes on legislation on the premise that 20 percent of college women are being sexually assaulted, the result — as the proposed bills clearly demonstrate — is emotion-fueled legislation that will do more harm than good. Look no further than current campus policies for proof: dozens of due-process lawsuits have been filed by accused students against schools across the nation, and sexual assaults still take place — at epidemic levels, we’re assured. Rape can destroy lives, but so can false accusations.
If universities want to prevent sexual assaults on campus, and not just react to them, then students — properly trained and subject to background checks — should be allowed to carry concealed weapons. Yet university officials who claim to want to stop sexual assaults are overwhelmingly opposed to self-defense on campus.
Some Republicans, already sensitive to attacks that they are waging a “war on women,” are supporting this legislation simply to avoid being labeled “pro-rape” on the campaign trail. Sen. Marco Rubio, R-Fla., is a bill co-sponsor. His spokesman, Alex Conant, was asked by the Washington Examiner’s Ashe Schow whether the bill would ensure due process for the accused and inform them of their rights. “This bill does not address this issue,” Mr. Conant said.
Colleges have one overriding obligation to sexual assault victims who have the courage to come forward: ensuring that they call police. Rapists must be punished. But leave criminal investigations and prosecutions to states.
Students don’t lose their rights upon enrolling in college. Nevada’s delegation should vote against the Campus Safety andAccountabilityAct,andanyotherlegislationthattramples due process. Washington must stop piling overreaching regulations and mandates on colleges regarding crime. Higher education systems are not supposed to be justice systems — no matter how badly college administrators and politicians want them to be.
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