Last year, a group dedicated to ensuring all students have rights on college campuses proposed model legislation that detailed how universities should handle accusations of sexual assault. Now, eight months later, the group has revised the model legislation following recent events surrounding the issue.
The group, known as Stop Abusive and Violent Environments (SAVE), has been advocating protection of due process rights for accused students for years, and have most recently pushed Gail Heriot, a member of the U.S. Commission on Civil Rights, to lead the Education Department’s Office for Civil Rights, which oversees sexual assault policies.
One event that led to the updated legislation was a California judge’s recent decision to “dissolve the findings” of a San Diego State University tribunal because the disparate treatment of the accused in the case was “enough to shock the Court’s conscience.” While the federal government requires schools to allow the accused and accusers to have the same ability to obtain advisers, SDSU provided the accuser with an experienced adviser who was allowed to speak with her, while the accused had to pay for a trained adviser (a lawyer) who could not speak for him.
This instance, as well as the many others that have arisen since the model legislation was first proposed, have caused SAVE to revisit its proposal.
New provisions in the model legislation would require cases to “preferentially” be referred to local law enforcement, and schools would be banned from conducting their own investigation while a criminal probe is ongoing. The bill also prohibits schools from investigating a claim without the “express request of the complainant.”
Further, the bill would remove the “double jeopardy” provision on college campuses that allow accusers to appeal a non-responsibility finding. The bill also would mandate schools use the “clear and convincing” standard or higher when adjudicating cases of sexual assault, instead of the low “preponderance of evidence” standard imposed by the Obama administration.
One of the biggest changes to the model legislation is the inclusion of an “alternative dispute resolution” process that schools could create to avoid disciplinary proceedings. This would be a more informal process that wouldn’t end in a finding of responsibility, but would allow students to resolve complicated disagreements without criminal accusations.
So far no one in Congress has introduced a bill based on the model legislation, but several states are considering measures that include some of the provisions.