Tuesday, August 5, 2014

Action Alert: U.S. Senator Claire McCaskill’s S2692 Federal Campus Safety and Accountability Act (CASA) co-sponsored by Virginia Senator Mark Warner and Florida Senator Marco Rubio Assumes All Accusers are Survivors and Anyone Who is Accused is Guilty, Period!

·       ‘Affirmative Consent’ U (CA), August 11, 2014
                Young Men’s Rights in Peril
·       Campus-rape bill comes under heavy fire, August 10, 2014
                'Will make it difficult to protect a young man from false accusations'
·       The Campus Accountability and Safety Act (CASA): a flawed response to an exaggerated problem, August 9, 2014
·       RTD Op/Ed: Campus Rape Questions, August 9, 2014:
                Ambrose: Exaggerating campus rape does not provide solutions
        Rampell: End the campus rape numbers game with transparency
·       One-Sided Campus-Rape Bill, August 7, 2014 
                Campus courts are unsafe places for the accused. McCaskill and Co.’s bill does not right the balance.
·       CASA and the presumption of guilt, August 7, 2014
·       The Repeal of Due Process on Campus, August 6, 2014
·       Two More Campus Sexual Assault Bills Introduced, Neither Addresses Due Process, August 5, 2014
                SOS Campus Act introduced by Sen. Barbara Boxer, D-Calif.
                HALT Campus Sexual Violence Act introduced by Reps. Jackie Speier, D-Calif., and Patrick Meehan, R-Pa
·       Campus Sexual Assault Bill Relies on Public Shaming of Colleges, August 1, 2014
·       Bipartisan Senate bill on campus sexual assault seeks to insure that every accusation is tantamount to a finding of guilt, July 31, 2014
·       Campus-assault crackdown provoking expensive backlash, July 5, 2014
                Accused students fighting back against Obama admin's lower evidence standard

Original Post:
Virginia Senator Mark Warner (a co-sponsor of S2692) was one of the 8 Representatives that stood in front of the media last week (before they all left D.C. for the 5-week August Break) to announce Senator Claire McCaskill’s Campus Safety and Accountability Act. The array of articles following this press conference carried catchy titles that no one in their right mind would ever oppose, “Holding Campuses Accountable”, ‘Bipartisan Bill Takes Aim at Campus Sexual Assault” and “Crackdown on Campus Sexual Assaults”. 

I’ve learned over the last 6 years proposed legislation with big media rollouts and catchy phraseology is usually hiding its true intent behind the hype, is a violation of rights and/or due process and uses fear and myth rather than facts and careful consideration to push it through the process. 

Well, that’s exactly what S2692 is all of the above! Fear, myth, right’s violations, due process violations, presumption of guilt and many, many more. 

Why?  Because Campus Sexual Assault has become a moral panic and to make it go way or to fool the public into thinking something positive has been done by the Federal lawmakers, they’ve rushed to patch together a piece of legislation that causes more problems than it solves.  

As if innocent men (and women) aren’t ever falsely accused of sexual misconduct. I believe Sean Lanigan, Brian Banks, Jonathan Montgomery and Edgar Coker Jr. (just to name a few) would be happy to remind the Senators it happens way more than they’d like to admit. S2692 makes it easier for those who do lie to get away with it. 
Stop Abusive and Violent Environments (SAVE) an arm of Center for Prosecutorial Integrity wrote a Summary and Analysis on the bill 4 days ago. 

And a writer for the Washington Examiner wrote a great piece (see below) about the obvious flaws and damage that will occur if S2692 actually passes through the U.S. Senate and House as is.  

The below article asked U.S. Senator Rubio’s (co-sponsor of S2692) office 6 questions about the proposal and

SAVE has asked it’s readers to contact Senator Rubio’s office to address the 6 issues immediately.

As of today there are 13 Co-Sponsors of S2692 they are:

I predict this number will increase. 

I’m asking all of you to read the bill, read SAVE’s analysis and then read the below article that asks 6 very important questions about the bill. 

Then contact Virginia Senator Mark Warner (c0-sponsor) and Virginia Senator Tim Kaine’s offices/staffers.:

Ask them both to address these serious issues immediately and if they can not amend S2692 ask them to vote against it.  The representatives may be on August break but their D.C. offices are still staffed and the Representatives are reading emails and taking phone calls from them.

Thank you all! 

Mary Devoy

Opinion: 6 questions for the sponsors of the new campus sexual assault bill, July 31, 2014
By Ashe Schow 

Eight senators introduced bipartisan legislation Wednesday designed to combat sexual assaults on college campuses.

But, as with most fancy-named bills, the “Campus Safety and Accountability Act” may not do anything to actually combat sexual assaults and will most likely lead to more lawsuits over claims of due process violations and more men being convicted for politically correct purposes. 

The bill’s one-page summary refers to accusers as “survivors” throughout, without any mention of accuracy of their claim or its outcome. It states that the bill will help colleges “rid their campuses of sexual predators.” To me, that doesn’t sound like the bill is going to be concerned with the truth of the allegations or any kind of due process for the accused. 

Right off the bat, the bill appears to be aimed more at assuaging public outrage over a perceived epidemic than actually assisting campuses in dealing with a very real and serious problem.  

To that end, I have some questions for the bill’s sponsors, which I will send to their offices. I will post their responses as I get them. 

  1. What protections will be in place to make sure the annually reported statistics won’t lead to more convictions based on political correctness?
The bill requires universities to prepare an annual report with sexual assault statistics, including:
    • “The number of cases that were investigated by the institution”
    • “The number of cases that were referred for a disciplinary proceeding at the institution”
    • “The number of cases that were referred to local or state law enforcement”
    • “The number of alleged perpetrators that were found responsible by the disciplinary proceeding at the institution”
    • “The number of alleged perpetrators that were found not responsible by the disciplinary proceeding at the institution"
    • “A description of the final sanctions imposed by the institution for each offense perpetrated” and
    • “The number of disciplinary proceedings at the institution that have closed without resolution.”
By reporting such numbers, universities will have more incentive to convict to boost those particular data points instead of determining whether a criminal act transpired. 

  1. How will the student surveys solve the problem, instead of being used for political purposes?
Colleges also will be required to provide an annual survey of students “regarding their experiences with sexual violence and harassment.” Surveys like this will only provide talking points for politicians and can in no way be an accurate assessment of the problem of college sexual assault. 

The student survey will include statements about:

    • The prevalence of “sexual violence, dating violence, domestic violence and stalking"
    • “Whether students know about institutional policies and procedures"
    • Who accusers reported instances of violence to, what the response was and whether they were referred to “local, state, on-campus and or national resources”
    • Whether force, incapacitation or coercion was involved
    • Whether the accused was a student, and
    • Whether the accuser was referred to “local or state law enforcement.”
As I’ve discussed before, surveys aren’t reliable. Depending on how the questions are worded, responses may be coerced. For instance, the Centers for Disease Control and Prevention study alleging that one in five women have been victims of sexual assault used suggestive questions to ascertain whether women had been raped. 

  1. Who will have more authority, the colleges or local law enforcement?
The bill also requires colleges to coordinate with local law enforcement, including sharing investigative responsibilities, preserving evidence and training certain university officials about sexual violence. 

Because many sexual assault cases are handled by the colleges (generally because there is not enough evidence to prosecute in a criminal court), universities don’t have to follow annoying rules like “procedure” and “evidence.” This problem is best illustrated by Duke University, which actually says that because “disciplinary hearings are not trials,” the university is “not constrained by rules of procedure and evidence typically used in a court of law.” 

Many other colleges, including these Ivy League universities, can find a student guilty based on a preponderance-of-evidence standard, or 50.01 percent guilty instead of the typical “beyond reasonable doubt” standard. 

So, will local authorities be treating accusations of sexual assault as crimes and take over investigations for colleges, or will colleges only have to coordinate with police for certain situations? And what would those situations be? 

  1. Will there be “support services” for the accused?
The bill will establish “university support for survivors of sexual violence.” Nowhere does it mention any kind of support services for those accused. 

The “confidential advisers” designated to assist accusers will “perform a victim-centered, trauma-informed (forensic) interview” with the accuser. They will also inform the accuser of what they can do next, whether that be notifying campus officials or local police. The advisers may also assist accusers in reporting the incident. 

Nowhere does the bill mention any services for the accused (note: accused means innocent until proven guilty). Will there be someone on campus providing them with information on what they can do to provide for their own defense? Will they be informed of their rights, and will those rights be under the law (due process) or under campus rules? Will they have the right to legal counsel in disciplinary proceedings? 

In a statement to the Washington Examiner, American Enterprise Institute scholar Christina Hoff Sommers, one of the leading voices for responsible college sexual assault policy, decried the absence of due process rights for the accused in the bill. 

“The campus gender activists who have promoted the new laws may not care about the rights of the accused, but U.S. senators have to care,” Hoff Sommers said. “They are the guardians of a legal tradition that takes exacting precautions to avoid convicting an innocent person of a crime.” 

“Presumed guilty seems to be the new principle,” she added. 

  1. Who will pay for campus personnel training?
The bill requires that a “responsible employee” be trained to respond to accusations of sexual assault, including reporting instances, informing accusers of their rights (but not the accused?), knowing about consent and “the role drugs or alcohol can play in the ability to consent.”

Meaning the “responsible employee” will be following the rules that drugs and alcohol negate consent but do not negate obtaining consent. 

Oh, and the “responsible employee” will also need “cultural awareness training regarding how sexual violence may impact students differently depending on their cultural background.” 

But who will pay for this? The university? Won’t that increase tuition costs? And what about small colleges that can’t afford the training? Will they be able to pool resources with nearby colleges? 

John Banzhaf, a public interest law professor at George Washington University, proposed just such an idea. 

In an article in the St. Louis Post-Dispatch, Banzhaf argued that universities near each other could share a investigators to “promptly and impartially investigate all reports of sex crimes involving students, using full-time trained and seasoned professionals such as former special victims detectives, retired sex-crimes prosecutors, rather than university functionaries." 

But there is no mention of that in this bill. 

By now it has become clear that this bill is incredibly slanted toward accusers, regardless of whether they can prove their claim. With all these protections and services for accusers, why is there nothing pertaining to the accused? 

  1. Will the government detail a “uniform campus-wide process” for dealing with claims of sexual assault?
The bill just says that each college should have a uniform process for handling sexual assault claims and not deviate from the process because the accused was say, a football player or engineering major, etc. 

But the bill doesn’t make processes uniform across all college campuses, which leads to a lot of problems. For instance, in an article linked above, Harvard does not allow accused students to have a lawyer at their hearings and can’t cross-examine the accusers. 

Will this bill do anything for the accused by way of allowing them to defend themselves? Will the accused be able to obtain counsel or cross-examine the accuser? Why doesn’t this bill ensure all campuses allow the same defense procedures for the accused?

This bill institutionalizes bias against the accused in a “guilty until proven innocent” mentality, but doesn’t provide the accused any recourse to defend themselves.