On Oct. 2, 20 attorneys wrote a joint statement to 15 senators on the Campus Accountability and Safety Act, or CASA (S. 2692 and H.R. 5354, both currently in committee).
Each attorney has handled a case in which a student accused of sexual assault on campus has sued the university for violating his due process. The attorneys offered the Senate their expertise with the goal of evolving legislation that did not require male students to abandon constitutional rights. They addressed the Senate because that's where CASA originated and where it is championed.
The federal "squeeze" began in April 2011 when the Department of Education's Office for Civil Rights informed most American campuses that they needed to comply with new standards for adjudicating sexual assault if they wished to receive federal funds, as almost every university does. The new standards deprived an accused of legal protections, such as the presence of counsel and the right to cross-examine accusers. Instead of the criminal standard of "beyond a reasonable doubt," universities were to use the civil standard of "a preponderance of evidence." Thus, students could found guilty of rape by the same standard of evidence traffic courts use to adjudicate parking tickets.
Meanwhile, an increasing number of those found guilty began to sue. The organization, A Voice for Male Students, lists 42 recent cases in its database of lawsuits over such adjudications. Most cases are pending. Some indicate "confidential settlements."
The joint letter cited one case in particular to dramatize the damage being inflicted by university hearings. On April 16, 2013, an editorial on the same case ran in The Wall Street Journal. Written by the accused's mother, it was entitled, "A Mother, a Feminist, Aghast: Unsubstantiated accusations against my son by a former girlfriend landed him before a nightmarish college tribunal." Her son's hearing included no preliminary inquiry, no presumption of innocence, no specific charges, no evidence beyond hearsay, no right to confront or cross-examine his accuser, no attorney — in short, no due process. Because she was an attorney, his mother ultimately extricated him.
Why have university hearings become so Kafkaesque? There is federal pressure to prosecute and to vindicate accusations of sexual misconduct. NPR reported (on Sept. 3) that "More than 70 campuses are under federal investigation for violating the civil rights of alleged victims, and some students say schools are running so scared that they're violating the due process rights of defendants instead."
CASA constitutes more federal pressure. The bill resulted from hearings and a report, "Sexual Violence on Campus," in which Sen. Claire McCaskillClaire McCaskillSunday shows preview: Trump sits down with Fox Democrats unnerved by Trump's reliance on generals Senate passes stopgap funding bill, averting shutdown MORE (D-Mo.) played a leadership role. CASA focuses on institutional reporting of sexual assaults, which would seem to be a gender neutral matter. It is not, if only because the accused are overwhelmingly male.
The attorneys' letter explained that "the report and proposed legislation are not focused on protecting all students, but only those students who allege that they are 'victims'. ... The proposed legislation refers to 'victim' or 'victims' 34 times, and to the 'accused' just once. Tellingly, the proposed legislation never once uses the term 'alleged' victim, or victim of 'alleged' sexual assault, or 'accuser.' By presuming that all accusers are in fact 'victims' prior to any investigation or adjudication, the proposed legislation does a grave disservice to those accused of serious sexual offenses by ignoring a concept at the core of due process, innocent until proven guilty."
The letter offers specific suggestions "to ensure a more balanced process." The first recommendation: Because "colleges are ill equipped to investigate and adjudicate sexual assault" such accusations "are best handled by law enforcement and ... colleges ideally should be required ... to refer such matters" to the police.
The letter should have stopped there. Rape is a criminal offense to be handled by strict standards of law, not by university bureaucrats under pressure from the federal government. But the letter recognizes "Congress is unlikely to require ... local law enforcement officials bear sole responsibility" for sexual assault on campus. Thus it continues by suggesting how university hearings can become more balanced.
The suggestions are a mistake. Universities have no more business investigating rape than investigating murder, kidnapping or other violent felonies. Their role is to cooperate with police, not to usurp legal functions. CASA diverts universities into law enforcement when they desperately need to return to education.
McElroy is a research fellow at the Independent Institute.