Dozens of state legislatures are rushing this year to crack down on college sexual assault, but only a few of them are also moving to protect the rights of the accused.
This includes Arkansas, where students now have the right to bring an attorney when appealing a nonacademic suspension or expulsion, thanks to legislation that became law last week. The North Dakota legislature is expected to follow shortly with its own bill allowing students the right to retain lawyers in disciplinary hearings.
“It really is a good, refreshing change of direction,” said Joseph Cohn, legislative and policy director of the Foundation for Individual Rights in Education. “I think it acknowledges that legislators are coming around to the point that we can’t continue to expel students under charges of felony conduct without providing them a right to a lawyer first.”
Concerns about due process on campus have soared as universities come under pressure from the Obama administration to prove they’re clamping down on sexual assault. The discredited Rolling Stone story about a University of Virginia fraternity rape has done little to slow the push for tougher disciplinary measures to combat what activists call the “rape culture on campus.”
That includes this year’s legislative push in a half-dozen states for affirmative consent laws, which require the accused in college sex-assault cases to prove that the accuser consented to the sexual activity.
California approved the nation’s first and only such statewide law in September, which directs public colleges and universities to adopt affirmative consent as the standard for judging “sexual assault, domestic violence, dating violence and stalking” cases involving any student on- or off-campus.
An additional bill now under consideration requires a minimum two-year suspension for any student found responsible for such assaults.
In other states, bills have been introduced to enact mandatory reporting requirements, strengthen relationships with law enforcement, establish task forces and create victims’ bills of rights, said Suzanne Hultin, analyst with the National Conference on State Legislatures.
“Every state is looking at something kind of different,” said Ms. Hultin. “There’s a handful of states that are looking specifically at affirmative consent policies. There are other states that are looking at other types of reporting. There are other states looking at creating community partnerships with organizations that help support victims. There’s a whole swath of ideas that they’re looking at.”
In North Dakota, the bill to ensure legal representation for the accused stemmed in part from outcry surrounding the 2010 case of Caleb Warner. A student at the University of North Dakota, he was suspended for three years after a former girlfriend accused him of rape.
Even though police ultimately charged her with a false report, the school initially refused to reopen the case. Mr. Warner never returned to the university. His mother, Sherry Warner-Seefeld, founded Families Advocating for Campus Equality in response.
“I think our homegrown cases played much more of a role in this,” said North Dakota state Sen. Kelly M. Armstrong. “The UVA case did factor in a little bit when we included university organizations. But we only allowed it for the most serious of the offenses, and those are the offenses in which you can get suspended or expelled or, in the case of groups, removed from campus.”
Those raising objections include higher education institutions like the North Dakota University System, whose general counsel said allowing lawyers to participate would make the student disciplinary process more complicated and expensive.
“Right now, disciplinary hearings are conducted with non-legal administrative staff, who are trained in student affairs issues or with conduct boards made up of students trained in student judicial rules,” said NDSU general counsel Christopher Wilson in an op-ed in the Grand Forks Herald. “If attorneys are allowed to participate, then we are concerned that these processes will be insufficient to deal with the level of legal complexity that will ensue.”
NASPA, a national group representing students’ affairs administrators in higher education, has also challenged the bills, saying in a Feb. 19 open letter that, “Providing these rights to accused students alone leads to inequality between students that makes it virtually impossible for colleges and universities to protect their students’ rights to equal educational opportunities under Title IX.”
While not all the bills have specified that the accuser also have access to counsel, Mr. Cohn said that regulations on the federal Violence Against Women Act “require institutions that provide the right to counsel to one student to also provide that same right to the other student.”
The North Dakota bill does specify that accusers may have legal representation participate in hearings if they choose. The legislature has also passed a separate bill to study policies, procedures and services on sexual assault and other offenses available in higher education.
“Both the House and the Senate were very conscious of making sure that the victims weren’t getting dragged through the wringer in this deal,” said Mr. Armstrong, one of the bill’s sponsors. “Having an attorney be able to participate probably will help that cause, not hurt it, because attorneys are trained to ask questions and college sophomores aren’t.”
The Virginia legislature has killed right-to-counsel legislation twice, but both the Arkansas and North Dakota bills had overwhelming support in their state legislatures.
In Arkansas, there were only three floor votes cast against the bill. In North Dakota, where the bill is now in conference committee, only one legislator voted against it.
“We just want to make sure that everybody’s protected so people can look at it and say, ‘You know what, that was a fair process,’” said Mr. Armstrong.
North Carolina approved in 2013 the first law guaranteeing legal counsel for students and student organizations brought up on charges in campus courts at public universities. That bill also had only one dissenting vote.
Certainly it looks as if campus counsel will be in demand.
The National Center for Higher Education Risk Management (NCHERM) estimates that about 800 universities have adopted some sort of affirmative-consent policies, known as “yes means yes,” which require students to indicate through words or actions that they agree to sex.
States considering affirmative-consent bills at public universities this year include Hawaii, Iowa, Minnesota, Missouri, North Carolina and New Jersey. Typical of the affirmative-consent standard is the one passed in October by the State University of New York at the urging of Gov. Andrew Cuomo.
“Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity,” says the SUNY policy. “Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. Previous relationships or prior consent cannot imply consent to future sexual acts.”
Civil libertarians have blasted affirmative consent, arguing that the policy shifts the burden of proof on the accused student before campus tribunals often seen as stacked against the defendant.
“Affirmative consent requires people to prove their innocence in situations that are largely behind closed doors, where the accuser decides when and if there’s an accusation at all, sometimes many months — sometimes many years — after the fact,” Mr. Cohn said. “Even with a lawyer, good luck.”
Such policies have been praised by those fighting sexual assault, who argue that victims should not be required to prove that they fought back in order to establish lack of consent.
“Traditionally we’ve focused on a lack of consent as someone fighting off an attacker,” Laura Dunn, executive director of SurvJustice, told Inside Higher Ed. “You looked for evidence of resistance. We only talked about what consent was not, which is not a very helpful paradigm.”
In an October statement, NCHERM said that, “Consent is an evolution beyond laws and policies that defined sex offenses as forcible or against somebody’s will. That led to a need to prove force of resistance.
“But, if you take a wallet without permission, regardless of whether you take it by force (it could just be lying around), it’s still a property crime,” said the statement.
The group explicitly acknowledges the difficulties of proving consent, but waved that off as the price of progress.
“Those who are skeptical of consent allege that it is harder to prove than showing the use or force or the offering of resistance. Perhaps, but no one ever said evolving was easy,” NCHERM said.
Mr. Cohn disagrees, saying the policies represent “a growing and disturbing trend that tries to simplify campus sex assault issues as if we have a problem with understanding consent, when the issues are clearly much more complex than that. They’re looking for shortcut solutions.”