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Campus sex assault bill would codify standards in Mississippi that might be on the way out in D.C.

By and   /   February 2, 2017  /   News  /   No Comments

Photo by Steve Wilson

ON CAMPUS: A bill in the Mississippi Legislature could codify a controversial federal mandate that could reduce due process rights for those accused of sexual assaults at the state’s public universities and community colleges.

Legislation that would add a contentious Obama administration mandates on campus sexual assault procedures to Mississippi law is still alive in the state Legislature, even if they are tottering at the Department of Education.

The bill was approved Tuesday by the House Judiciary B Committee and is already on the House calendar.

The measure,  sponsored by state Rep. Angela Cockerham, D-Magnolia, would require the state institutions of higher learning to implement a comprehensive policy toward allegations of sexual violence, domestic violence and stalking that goes a step beyond one proposed by the federal government in 2011.

Photo by the State of Mississippi

SPONSOR: Mississippi state Rep. Angela Cockerham wants to enshrine in Mississippi law controversial federal mandates on campus sexual assault cases.

The Department of Education’s Office of Civil Rights said in its 2011 “Dear Colleague” letter that under Title IX — which prohibits discrimination on the basis of sex in any federally funded education program or activity — that universities and colleges are to use a “preponderance of evidence” standard to adjudicate claims of sexual violence, a much lower standard than the “beyond a reasonable doubt” standard of proof used in criminal courts.

The “preponderance” standard means that campus adjudicators just have to be 50.01 percent sure that an assault took place.

Critics say the policy has reduced due process rights for the accused and compromised the impartiality of investigators. It also restricts an accused’s right to counsel and doesn’t require that the accuser be present at a hearing.

Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, recently wrote of the Mississippi bill:

“Legislators should keep in mind that procedures that are unfair to the accused actually harm the long-term interests of victims of sexual assault, because they damage the credibility of campus proceedings and diminish public confidence in their results. FIRE hopes the legislature will rethink the bill and either replace its problematic provisions with language that reflects the rights of all students or abandon the bill altogether.”

FIRE noted several instances in which the bill is unfair to the accused beyond the low standard of evidence. The bill refers to accusers as “survivors” throughout, creating a bias against the accused right from the beginning. To be a “survivor,” one must have survived something, making a false or exaggerated accusation determination impossible.
The bill provides students little chance to cross-examine their accuser, and can only submit questions to the campus fact-finder, who has discretion in which questions to ask. The bill also would not allow accused students to be represented by an attorney. Since anything they say in a campus investigation and hearing can be used against them in criminal court, not letting an attorney speak for them puts them in potential danger further down the road.
Accusers, under the Mississippi bill, would also have access to resources the accused would not, such as psychological help.
The bill insists that schools use “trauma-informed” or “victim-centered” investigative techniques. In practice, in college sexual assault cases these techniques have been used to make it impossible for an accuser’s story not to be deemed truthful by insisting that inconsistencies and vagueness are proof of trauma.

Jameson Taylor, vice president for policy at the conservative Mississippi Center for Public Policy, said new guidance from the Trump administration will likely supersede the Obama directive.

“They (the Obama administration) took these Title IX requirements for campus rape and drove a truck through that,” Taylor said. “It’s ironic that Mississippi is trying to enshrine into law a very questionable federal policy that is about to get rescinded.”

A lawsuit was filed in June challenging the legality of the lower evidentiary standard and lack of due process protections promulgated by the 2011 federal mandate.

Beyond the lawsuit, U.S. Sen. James Lankford, R-Okla., has been a thorn in the side of OCR after asking questions as to why the 2011 guidance document avoided public scrutiny. The original Obama-era directive is considered by critics to be invalid because it did not go through the proper notice-and-comment period required by the Administrative Procedures Act.

If the Mississippi bill is enacted, it would be the only state in the union required to use the lower standard of evidence if the Obama-era guidance is rescinded.

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