Connecticut Gov. Dannel Molloy after signing legislation on campus sexual assaults

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Campus Sex Assaults Draw State Scrutiny

August 28, 2014

Few issues affecting higher education have captured as much national attention this year as sexual assaults on college campuses.

When Congress reconvenes after its August recess, a bipartisan group of lawmakers will continue their push to pass legislation aimed at curbing campus sexual assaults. The Obama administration has taken on the issue, making public recommendations for how colleges should respond to the problem and more aggressively pursuing institutions that mishandle sexual assault cases.

But as Washington’s focus on campus sexual assaults continues, the issue is also increasingly commanding the attention of policy makers at the state level. Echoing concerns made by their federal counterparts, lawmakers and other officials in a handful of states are pursuing new ways to crack down on campus sexual assaults.

Connecticut, for instance, passed sweeping legislation this year focused on campus sexual assaults. That law requires public and private colleges in the state to create sexual assault response teams on their campuses, provide more robust prevention programs, and develop a partnership with local sexual assault crisis centers through which students can receive free counseling services.

In addition, all Connecticut institutions must now also provide a report to the state legislature each year that tallies the incidents of sexual violence on their campus as well as the number and outcome of disciplinary hearings.

The legislation was drafted after seven women last year filed a Title IX complaint against the University of Connecticut, alleging that the university did not properly respond to reports of sexual violence and harassment.

Accountability Proposals

While the Connecticut law was prompted by a specific complaint, the flurry of activity in some other statehouses is being fueled in large part by a desire to hold colleges and universities more accountable for how they handle cases of sexual violence on campus. And unlike the Connecticut law -- which won the support of several institutions and passed the legislature unanimously -- other states’ efforts have been or will likely be more controversial. 

Two sets of legislative proposals are floating around in New Jersey. One proposal, sponsored by Assemblyman Reed Gusciora, a Democrat, would give the state’s attorney general the authority to fine colleges up to $50,000 if the college doesn’t appropriately respond to an allegation of sexual assault.

Gusciora, who as a municipal prosecutor has pursued sexual assault cases, said the goal of his bill is to “reinforce the message that universities and colleges need to take these allegations more seriously.”

“I often see attempts by colleges to handle these matters in house and not adequately refer them to local authorities, who are in a position to investigate,” he said, adding that “the colleges are reluctant to bring them to the forefront because of reputational concerns.”

The bill has already cleared a committee but has not yet been scheduled for a vote by the full General Assembly.

At the same time, New Jersey State Senator Peter Barnes is separately pushing a package of three bills relating to campus sexual assault.

The legislation would require colleges and universities in the state to post on their websites each month the number of sexual assaults reported on campus and to provide victims of sexual assault with a confidential adviser. In addition, one of the bills would mandate that colleges pass along reports of campus sexual assault to law enforcement.

“If a student in New Jersey reports to a person of authority that he or she has been sexually assaulted, in other words, a crime has occurred, then that university must immediately report to the local police department," Barnes said. “Naturally, you can never force the student to cooperate with the investigation if the student doesn't want to provide information. But the colleges should not have the discretion to hide it.”

Some victims’ advocates have rejected such a mandatory reporting approach, arguing that it takes away a victim’s power to decide how to proceed with a case.

Barnes said the impetus for his bills came from his own research as well as media reports about campus sexual assault, notably The New York Times feature last month about a botched handling of a rape case at Hobart and William Smith Colleges. He said that colleges need to do a better job dealing with sexual assaults and move away from the idea that a “knee-jerk reaction is to protect the reputation of the college.”

Barnes said he expected the bill to go before a committee in October. He also said hasn’t sought feedback from colleges and universities in the state, but predicted that that it would be “an epic battle.”

“They're not going to want to crack down,” he said, adding that “I'm sure they're not going to be pleased with the bill. Any time a bill adds a burden or obstacle to any group or interest group there's always a problem, but I welcome the dialogue.”

John Wilson, president of the Association of Independent Colleges and Universities in New Jersey, said that his group had not yet taken a position on any of the proposals but would be looking at them more closely as they become part of the active legislative agenda this fall.

“I would reject the idea that colleges are failing on this front,” he said. “Every institution takes this as a very serious matter.”

“One area of disagreement is when you have to involve outside authorities,” Wilson added. “Colleges would be concerned about the wishes of the victim. To make it automatic that you have to report it to the prosecutor could leave the victim in the situation of not having choice.”

Campus Climate Surveys

Legislative efforts have already been fraught in Maryland, where a bill requiring institutions to conduct anonymous campus surveys about sexual assault was shot down at least in part by objections from universities.

The bill’s sponsor, Delegate Jon Cardin, a Democrat, said the goal of the surveys was to push campuses not only to focus more on sexual assault prevention but also on providing prospective students and families with the ability to make “legitimate, accurate comparisons” between institutions about the prevalence of sexual violence on their campuses. He said he modeled his bill on surveys done at the University of New Hampshire.

Cardin said he was disappointed in how colleges and universities lobbied against his bill, which died in committee.

“They did not really want to listen,” he said. “Instead of trying to work on it and try to come up with something that was a modest start, they said, ‘We’re going to kill it,' ” he said.

“I can’t imagine that they would have been able to react in the same way if the White House had come out at that point, and said it was a best practice,” Cardin said.

An Obama administration sexual assault prevention task force in April released its first set of recommendations, which included campus climate surveys. Vice President Joe Biden said at the time that all colleges should conduct climate surveys “if they are really serious about protecting students.”

Cardin, who lost a bid for the Democratic nominee for attorney general earlier this year and won’t be returning to the state legislature, said he hopes another lawmaker will pick up the issue in Maryland.

The bill in Congress by Senators Claire McCaskill, Kirsten Gillibrand and others would mandate campus climate surveys at colleges and require institutions to post the anonymous results online.

As lawmakers return from the August recess next week, it’s unclear how far legislation will go in a gridlocked Congress that has a short amount of time to take care of other pressing business, like funding the government, before members become fully consumed by the midterm elections in November.

State legislatures, of course, are more nimble operations. Although only a handful of states are considering these types of proposals, they stand a far greater chance of moving forward.

‘Yes Means Yes’ Bill Moves Ahead

California appears poised to become the next state to adopt new legislation, as lawmakers there advance a controversial bill changing the definition of consent for colleges investigating alleged sexual assaults.

The bill, by Senator Kevin De León, a Democrat, would require that college students obtain “affirmative consent” before engaging in sexual activity. The legislation spells out that silence, lack of resistance, or an existing relationship does not qualify as consent.  

After clearing the Senate earlier this year on a 27-9 vote, the Assembly voted 52-16 on Monday to approve the bill. It now heads back to the Senate for final votes on amendments.

Executive Actions

Besides state legislative activity on sexual assaults, at least one executive is also tackling the issue.

Virginia Governor Terry McAuliffe this week formed a task force on campus sexual assault that will produce “best practices” for how campuses should respond to and seek to prevent sexual violence.

The task force will be chaired by Attorney General Mark Herring and will consist of state officials, higher education leaders, law enforcement, health officials and community advocates.

Herring will also work with colleges and universities to conduct “a top-to-bottom review” of sexual misconduct policies on campuses.

In Massachusetts, meanwhile, addressing campus sexual assaults has emerged as a prominent issue in a close race for the Democratic nomination for attorney general.

Warren Tolman, a former state lawmaker, has put out a policy paper on campus sexual assault that he has been touting on the campaign trail. The plan calls for the attorney general’s office to create a new position, the Liaison on Campus Assault, who would be tasked with making sure that Massachusetts colleges are following federal crime reporting rules and properly handling sexual violence cases.

In an interview, Tolman emphasized his plan to convene an annual summit of college leaders to discuss best practices.  

“If it's about beating them up, if it's about forcing them to do things, adding layers of bureaucracy, that won’t work,” he said. “This is about trying to push them and prod them and basically have a discussion about what's working.”

Tolman and his opponent, Maura Healey, a civil rights attorney and former assistant attorney general, sparred in a debate this week over how best to address campus sexual assaults.

Healey criticized Tolman’s focus on a gathering of college officials, saying it would not be the best approach to dealing with the problem.

“You solve campus sexual assault by giving schools the resources they need: rape crisis counseling centers, forensic investigators, relationships with police and district attorneys that are working so that people can come forward,” she said

 

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