Former U-Va. student seeks to block new federal law on campus sexual assault

March 6

A former University of Virginia student hopes to prevent a new federal law on campus sexual assault from taking effect Friday, claiming it would undermine the investigation into her allegations that a classmate raped her more than two years ago.

A lawsuit in federal court in the District argues that the Campus Sexual Violence Elimination (SaVE) Act would allow colleges and universities to place a greater burden of proof on alleged victims, renewing the debate about which standard of evidence colleges must use in disciplinary proceedings in sexual assault cases.

A report by the White House Council on Women and Girls released in January showed that nearly one in five women has been sexually assaulted in college but that only about 12 percent filed reports. President Obama has directed a task force to look at sexual violence at educational institutions, calling it an “affront to our basic decency and humanity.”

According to the lawsuit and her complaints, the former student experienced “severe sexual harassment and misconduct” in December 2011, prompting her to file federal civil rights complaints alleging that U-Va. mishandled her report of sexual violence by placing an “unlawfully high burden of proof” to try to determine what happened after a classmate drugged her.

James R. Marsh, the student’s attorney, said she is not alone. “These are young women on campuses at some of the most prestigious universities that are unable to achieve any just and fair treatment of their complaints,” he said.

Starting Friday, any annual crime report released by a college or university must include incidents of domestic violence, dating violence, sexual assault and stalking. The schools must comply with the rest of the Campus SaVE Act, which calls for “prompt, fair and impartial” efforts to investigate and resolve reports of sexual violence.

U-Va. spokesman McGregor McCance said the school takes sexual misconduct seriously: “We are committed to enhancing understanding and raising awareness of this important matter, including contributing to the national discussion about strengthening how universities are addressing this issue.”

Under the new law, schools will have to disclose their standard of evidence in disciplinary proceedings.

The Education Department’s Office for Civil Rights has told schools that they must use a “preponderance of the evidence” standard, meaning that they must decide whether it was more likely than not that sexual violence occurred. Some schools have used stricter standards, such as requiring “clear and convincing” evidence, somewhere between a preponderance of the evidence and “guilt beyond a reasonable doubt,” the standard used in criminal cases.

Bernice Sandler, a women’s rights advocate who played a role in creating Title IX — the law stating that schools receiving federal funding cannot discriminate on the basis of sex — said the Campus SaVE Act does not mandate either standard.

“In one sense, what this leads to is that women will have the same protections as they have always had in terms of age and sex discrimination, but if it’s sexual assault, it won’t be the same standards,” Sandler said. “They’ll be treated differently.”

Supporters of the Campus SaVE Act say it complements Title IX.

“It’s all about value added — additional disclosure, additional training,” said Lisa Maatz, vice president of government relations for the American Association of University Women.

Although the Campus SaVE Act does not require schools to use a specific standard, it improves overall transparency by making them disclose their standard, Maatz said. Schools that say they are using the stricter standard are “going to have some explaining to do,” she added.

S. Daniel Carter, who works for a campus safety advocacy group started by the families of those killed and injured in the 2007 Virginia Tech massacre, said the law also asks schools to provide education programs on sexual violence as well as give victims more rights.

“The greatest strengths of the Campus SaVE Act lie in the provisions that will begin to change campus cultures so that sexual violence is no longer tolerated, and ensure victims and survivors will feel fully supported,” Carter said. “These are the provisions that we expect to have the greatest impact on this challenge over time.”

As of Thursday afternoon, the court had not responded to the lawsuit, which Marsh said he filed more than a week ago. He called his frustrations with the court’s handling of the case a “parallel for what these victims are facing at every single level.”

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