Who Should Investigate Sexual Assaults?

Georgia legislation that would have forced more sex-crime cases into the hands of law enforcement failed, but marks a growing nationwide debate.

April 11, 2017

A Georgia lawmaker’s now defunct bill that would have restricted colleges’ powers to investigate campus sex crimes inspired a national firestorm. It highlighted a raging and yet unresolved debate: Do institutions unfairly pursue discipline against the accused?

Some believe the current federal directions for how colleges should scrutinize sexual assault cases is skewed in favor of those making a complaint, but measures that others view as bringing more balance to the process are often slammed as protections for rapists.

Though the controversial bill from Georgia Representative Earl Ehrhart easily passed the state's House of Representatives, the Senate Judiciary Committee tabled it, citing the need to rework the proposal. Ideas in the bill are reflected in national criticisms of how colleges adjudicate sexual assault allegations and have cropped up in both state legislatures and Congress. Because the Trump administration is expected to rescind the current federal guidance on these issues, the battle in Georgia could preview what's ahead.

Early in the state’s legislative session, sexual assault prevention advocates, particularly students and survivors, rallied fiercely against Ehrhart, a Republican and chairman of the House of Representatives subcommittee that controls the state's higher education spending.

The legislation would have mandated that reports of felony sexual assaults made to campus officials statewide be forwarded to law enforcement. Only a few types of employees are excluded from this requirement, namely licensed mental health professionals.

Colleges would have also been limited in their internal probes into such reports, depending largely on police. And any disciplinary investigation the institution conducted couldn't “obstruct or prejudice” law enforcement’s investigations.

Students who brought accusations of sexual assault wouldn't have been able to prevent anyone from telling law enforcement their story, though they could have been granted anonymity and would not be forced to cooperate with an investigation. Accusers also didn't need to engage in a college disciplinary proceedings, but under the bill, the college could punish no one without the accuser’s participation.

Such a proposal would create a “chill” among victims, who are less likely to come forward if they know law enforcement will be involved, said S. Daniel Carter, secretary of the advocacy group SurvJustice, which lobbied heavily against Ehrhart’s bill.

Survivors say this often, Carter said, but research seems to back the claim. Less than 5 percent of rapes or attempted rapes are ever reported to police, according to a 2000 study by agencies in the research arm in the U.S. Department of Justice. Victims surveyed in the study stated they did not want their family or other people to find out, or they lacked proof of their assault.

Eleven state and national advocacy organizations, including SurvJustice, in a letter to Georgia’s Senate Judiciary Committee when it was considering the bill, wrote that survivors would see mandatory reporting to police as “another betrayal.”

“Many survivors fear skepticism or harassment from the police and retaliatory violence by their perpetrator; many do not want to pursue a long, arduous criminal trial. Many are all too aware that prosecutors rarely press charges against accused rapists, and juries rarely convict,” they wrote.

Georgia students also pressed back against the bill, organizing a group called Students Against HB 51, a reference to the bill number.

Anna Harrison, a senior at the Georgia Institute of Technology and one of the group’s organizers, said that the legislation removed autonomy from survivors, a key part of their continued mental well-being.

The legal system lags far behind the speed of college investigations, too, Harrison said. Her encounters with legislators were relatively respectful -- excluding Ehrhart, who she said called survivors “snowflakes,” a common insult to describe someone’s perceived oversensitivity.

Left-leaning websites have also slammed Ehrhart with headlines like “Georgia Lawmakers Cruelly Mocked Rape Survivor Lobbying Against Harmful Bill,” and showed a video of him telling sexual assault survivors during one hearing on the bill to “trigger somewhere else.”

In an interview last week with Inside Higher Ed, Ehrhart criticized colleges’ handling of sexual assault cases, repeatedly referring to their procedures as “kangaroo court.”

Colleges, in investigating sexual assaults, follow Obama-era guidance issued by U.S. Department of Education’s Office for Civil Rights. The 2011 Dear Colleague letter re-interpreted the gender discrimination law Title IX of the Education Amendments of 1972. Perhaps the most controversial element of that directive was that colleges should, in judging sexual assault cases, rely on a lower standard of proof, preponderance of evidence, meaning that enough evidence has been presented to show a scenario likely occurred, rather than the clear and convincing evidence standard. President Trump is reportedly planning to rescind this guidance.

Ehrhart filed a still pending lawsuit against the Office for Civil Rights in 2016, claiming that the Obama administration's interpretation was unlawful.

False reports of sexual assault are “rampant” and destroy lives, Ehrhart said. He recounted a “poignant” meeting with the mother of student who had been accused of sexual assault but was later cleared -- the student had attempted suicide, Ehrhart said. This tragedy was one of many he heard from parents who contacted his office, he said.

“It comes down to punishing someone based on an accusation with no real standard of due process,” Ehrhart said. “It’s shocking to me that some think that you should be tried without due process, with some nonjudicial proceeding. Imagine if it was your family, your son or daughter, your sibling, who had their entire college education ruined, with no chance of a professional career, and a scarlet letter of serial sexual assaulter on your forehead. That’s serious stuff. You don’t get to do that with untrained college bureaucrats.”

Ehrhart did not provide data to back his claims of the prevalence of false reporting. Research has pegged the rate of false reports -- defined by the Federal Bureau of Investigation as an accusation that has been studied and deemed untrue -- between 2 and 8 percent nationally.

He did cite a 2016 piece from The Atlanta Journal-Constitution, which reported that Georgia Tech had suspended or expelled almost every student accused of sexual assault in a five-year period. In January 2016, the University System of Georgia’s Board of Regents reversed Georgia Tech’s decision to expel a student who had been accused of sexual assault. The student had sued, and the system later settled the lawsuit for $125,000.

The regents in March 2016 established two new university system policies concerning sexual misconduct and student conduct investigations. In a statement, the system stressed that investigators into sexual assault cases would be trained, and that both parties in a case were always allowed some sort of an adviser or attorney present at each stage of the process. Sonja A. Roberts, a spokeswoman with the University System of Georgia, declined an interview request regarding Ehrhart’s bill.

During the legislative session, HB 51 easily passed the Georgia House of Representatives 115 to 55, but stalled in the senate committee.

In an unusual legislative maneuver, Ehrhart, in an attempt to revive the legislation, struck a deal to gut a senate bill that dealt with bankruptcy and replaced it with the language of his bill. It still did not pass.

Ehrhart said during an interview that his actions were completely transparent, done on the floor of the House, and entirely appropriate.

“How could it not be if it’s allowed under law?” Ehrhart said.

He intends to bring the bill back next year, asserting this year he and the other sponsors “ran out of time” to send it through the Legislature.

Accordingly, his opposition intends to monitor movement on future legislation, and Harrison said her group will use the year to contact more organizations and broaden their lobbying force.

Both California and Virginia require sexual assault crimes to be reported to law enforcement. The Texas Senate also last week approved, 30 to 1, a bill that would mandate all college employees immediately inform a campus Title IX coordinator of a sexual assault.

Recent federal actions intended to curb sexual assault have failed. Federal legislation similar to Ehrhart’s was introduced in 2015 by former U.S. Representative Matt Salmon, a Republican from Arizona. It would have forced colleges to go to police, but after receiving written consent from the student who brought the allegation. Institutions wouldn’t have been able to launch an investigation until law enforcement’s concluded.

Another proposal from a contingent of bipartisan lawmakers led by U.S. Senator Claire McCaskill, a Missouri Democrat, came in both 2014 and 2015 and would have imposed heftier fines on colleges that mishandled Title IX cases. It also would have ordered colleges to survey their students anonymously about the frequency of sexual assault on campus.

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Jeremy Bauer-Wolf

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