No one said this was an easy issue. As people considered a bill from D.C. Council member Anita Bonds aimed at preventing campus sexual assault, in part by requiring colleges to permanently mark the transcript of a student found responsible by school officials for a sexual assault, they tended to look at the extremes.
They talked about cases in which a student attacked another, got expelled and transferred easily to another college — only to assault another victim.
And they talked about cases in which a student was falsely accused, unable to assert his innocence in a campus investigation, then branded as a rapist.
Several college officials in the District were reluctant to talk about the bill, saying they hadn’t had a chance to consider all the details yet. A spokeswoman for the Consortium of Universities of the Washington Metropolitan Area said members were hoping to talk with Bonds soon about how to achieve some of the goals of her bill, making campuses safer for students, without adding requirements that conflict with the already complicated layers of federal legislation dictating university responses to this issue.
One thing is clear, some experts concluded: Despite all that national legislation, both established and pending, more and more state leaders are likely to weigh in.
Bonds proposed a wide-ranging effort to prevent sexual violence on campus, including mandating training and a mark on the permanent record of students who either were found responsible in campus investigations of a sexual assault, or who left school while an investigation was ongoing.
Suzanne Hultin of the National Conference of State Legislatures said states have, indeed, begun to jump into the issue of prevention of campus sexual assault, since it percolating at the end of the 2014 legislative year, when six states considered bills.
This year, 26 did.
State legislators considered a variety of possible methods, including ensuring that campus police work closely with external police forces, mandating “affirmative consent,” or “yes means yes,” in an attempt to ensure sex is consensual, requiring reports to state legislators, and so on.
So far, 11 states have passed legislation, Hultin said, and she expects that the topic will continue to be discussed in next year’s session, as well.
“The overall intent of the bill is positive,” Kevin Kruger, president of Student Affairs Administrators in Higher Education, known as NASPA, said about the District bill. “But I’m concerned that nationally we’re moving toward having 50 different pieces of legislation that dictate what colleges and universities need to do.”
With strict guidelines from the Office of Civil Rights and federal laws in place, Kruger said, “it puts campuses in a difficult position, with overlapping state and federal guidance. That can be really challenging.”
Many states are moving toward the “scarlet letter” idea, he said.
A Virginia law — passed after the horrific death of a student at the University of Virginia — went into effect earlier this month, and New York passed a similar version requiring colleges to note if a student was suspended or expelled after being found responsible for a sexual assault.
“It’s a very, very complex issue to address, given the complex nature of sexual assault on campus,” Kruger said. The standard of evidence required by the federal guidelines is a very low standard compared to criminal law, he said. “To have that in the permanent transcript for some is troubling and problematic.” On the flip side, no one wants rapists or serially violent students moving from school to school without any accountability. “It’s a very tough area.”
A spokeswoman for the Rape, Abuse and Incest National Network declined to comment on the D.C. bill.
Know Your IX, another national advocacy group, has not taken a position on “scarlet letter” legislation, said Zoe Ridolfi-Starr, program coordinator and youth engagement coordinator there.
It’s controversial, she said, in part because mandating tough penalties can make people more hesitant to report unwanted sexual encounters. On the other hand, they have seen students get a slap on the wrist, she said, then go on to hurt someone else. “It’s tricky to walk that line.”
She said the bill takes strong steps in a number of directions, such as requiring in-person training and annual compliance reviews. But the scarlet letter issue is complicated
“It could be important to identify students who have a history of violent behavior and design effective prevention programs,” Ridolfi-Starr said. “That said — there are concerns about whether it’s appropriate for that kind of long-term marking to be coming through a campus-based adjudication process. That’s not to say it should or shouldn’t, but it opens up questions to be asked.”
She said that “the more fruitful question here is if our school is actually going to be working with people who perpetrate this violence. If our goal is to end gender-based violence, it’s not enough to just stamp ‘Rapist, rapist, rapist.’ They have to go somewhere. Just marking someone doesn’t get to the root of the problem.”
There are real cases “with tragic and horrific consequences,” Ridolfi-Starr said. “That said, labeling someone is a Band-Aid approach, rather than really ending this kind of violence.”
Stuart Taylor, an author who has written extensively about campus sexual assault, said a permanent mark would be appropriate if there were a criminal conviction.
“The problem with the college proceedings is they’re wildly unreliable, wildly inconsistent with the presumption of innocence and due process,” Taylor said. They’re incapable of being fair, he argued, without the resources to fully investigate evidence, without the power to subpoena witnesses, without the standards of a criminal proceeding.
“Rape and sexual assault are serious problems, both on and off campus,” Taylor said. “But every serious civil libertarian I know agrees that it is a cure worse than the disease to subject the many accused students who are in fact innocent to the inherently incompetent, guilt-presuming kangaroo courts that essentially all universities are now operating on the orders of the Obama Administration. And to require that such an innocent student’s transcript brand him for life as a sex criminal is unconscionable.”
A Maryland college student, after reading about the bill, said he was falsely accused of rape and said the idea of having it permanently marked on his transcript was horrifying. He asked that his name not be used because, although he was allowed to return to campus after an internal investigation found him not responsible, he is worried about his reputation at school and beyond. His mother described a “Kafkaesque” nightmare in which they hunted down evidence that the school didn’t bother to find, such as GPS and other data that helped clear the student of the attack.
Many students who have reported rape or other attacks have complaints, as well, about delays, skepticism, and other problems with the way their concerns were handled by the schools.
Neither accusers nor the accused are particularly happy with the way such cases are handled on campus, Ridolfi-Starr said. “I think both parties feel the deck is stacked against them,” she said. “Nobody trusts the system, nobody is confident in the result.”
The Obama administration has led a national campaign to stop sexual assaults on campus, and a fast-growing number of institutions across the country are under federal investigation for their response to reports of such assaults.
Bonds (D-At Large) said she was moved to introduce the legislation by a Washington Post-Kaiser Family Foundation survey that found that 20 percent of women who attended college within the past four years had an unwanted sexual experience while in school.
“I hear these statistics,” she said, “and I am outraged as many in the community are.”