As Congress explores proposals to combat sexual assault at colleges, a familiar lawmaker is in the thick of it: Sen. Claire McCaskill of Missouri.
McCaskill (D), a former prosecutor with much experience in handling sex crime cases, is in her second term in the Senate. She helped broker legislation last year and this year to overhaul how the military responds to sexual assault.
She told The Washington Post on Wednesday that she turned her focus to colleges last fall as sexual assault became a prominent issue on campuses.
McCaskill said she was struck by similarities in how the issue affects people in the military and at colleges.
In both settings, McCaskill said, there are “very young victims that have either been sent to a place where they assume they’re going to be safe or have chosen to go to a place where they feel like they’re going to be safe.”
These victims, she said, face “pressure from peer groups about how they will be perceived in this closed environment, if they are willing to publicly talk about what happened.” And there are questions in both settings, she said, about how internal justice systems (military courts or college misconduct boards) interact with the civil justice system.
She perceived another parallel. “I saw institutions that perhaps had not prioritized the rights and power of the victim . . . institutions [that] certainly could be guilty of trying to minimize this problem because of how it reflects on” them.
McCaskill just finished holding three roundtables on Capitol Hill to hash out issues that will factor into campus sexual assault legislation she wants to push this year. Among participants were groups representing survivors of sexual assault, campus safety experts, prosecutors, university administrators and university police. The discussions, however, did not appear to include the perspective of lawyers or groups who directly represent students accused of assault.
McCaskill said that she is taking the concerns of the accused into account. She said any college inquiries into sexual assault must be handled by trained personnel who stick to the facts. Fairness, she said, is paramount.
“Having said that, the vast majority of the perpetrators of this crime on college campuses are never even accused,” McCaskill said. “The vast majority of them never have a difficult interview with anyone. I want to make sure the accused have protections once the process has begun, but we’ve got to get to that point first.”
McCaskill said she aims to introduce bipartisan legislation as the next school year starts. Among her initial priorities, she said, are: empowering victims to step forward; improving training of university staff who handle cases; ensuring colleges survey their students about sexual assault and other safety issues; and clarifying various requirements for colleges under laws such as Title IX, the Clery Act and the Violence Against Women Act.
The latter goal, she hopes, will help secure support from higher-education leaders. “If we can simplify it and make it very clear, that will go a long way toward getting the universities on board,” she said.
McCaskill said she wants to write into statute a standard now set through a 2011 federal letter of guidance: that internal university sexual misconduct cases should be decided on a standard known as “preponderance of the evidence.” That standard — lower than others such as “clear and convincing” or “beyond a reasonable doubt” — essentially requires a university to determine it is more likely than not that a violation of its rules occurred in order to hold an accused student responsible for misconduct.
To critics who say the preponderance standard is unfair to the accused, McCaskill replied: “I think it’s the appropriate standard in light of the punishment that can be given. There’s no reason we shouldn’t codify it.” Most colleges now follow the preponderance standard, she said.
McCaskill also said she is considering a range of possible financial penalties for colleges found to have mishandled sexual violence cases in violation of the Title IX anti-discrimination law. Currently, the only sanction is to cut off federal funding, which the government has never done to a college.
“That’s an idle threat,” she said. “Because that’s never going to happen. That’s like having no penalty.”
As more sexual assault victims step forward to report offenses, that poses a challenge for colleges concerned about their public image. McCaskill said that the public should not blame a college if reported incidents rise.
“We’ve got to explain to the public that they should not hold a university responsible for some failure if the number of sexual assault reports go up,” she said.
“As I said to a parent I was talking to about this, the university you should worry about is the university that shows in their data they hardly have any sexual assaults and it’s been that way for years. Because that means they are not addressing the problem.
“I would be much more comfortable sending my child to a university that’s had an increase in reports of sexual assault over the last several years than one that’s had a decrease, or none.”