Tuesday, April 26, 2011

The Proposed SaVE Act Tosses Your Son's Rights Onto a Scrapheap of Indifference

The worst of the draconian sexual assault directive that the Department of Education issued on April 4 likely will soon become a law enacted by Congress. U.S. Senator Bob Casey (D-PA) has introduced legislation to combat sexual violence on college campuses called The Campus Sexual Violence Elimination Act (SaVE Act) (S.834), cosponsored by Senator Patty Murray (D-WA). The SaVE bill is found here. It amends Title IV of the Higher Education Act of 1965.

Among many other problems with this legislation (including the fact the word "victim" is used in excess of twenty times instead of  "accuser" or "alleged victim"), the bill mandates the following regarding college disciplinary proceedings:

"Each institution of higher education participating in any program under this title . . . shall develop and distribute . . . a statement of policy regarding . . . Procedures for institutional disciplinary action in cases of an alleged incident of domestic violence, dating violence, sexual assault, or stalking, which shall include a clear statement that-- (I) such proceedings shall--(aa) provide a prompt and equitable resolution; (bb) be conducted by officials who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability; and (cc) use the preponderance of the evidence standard."

PREPONDERANCE OF THE EVIDENCE STANDARD: The SaVE act would do legislatively what the Department of Education has already done by executive branch fiat: it would articulate a policy decision that it is acceptable to risk holding more innocent persons (almost exclusively males) responsible for wrongs they did not commit.

The vast majority of institutions of higher education currently apply the "clear and convincing" evidence standard, which means that to find an accused responsible for sexual assault, the school must produce evidence that unequivocally establishes a very high probability that the alleged assault occurred. The only reason they do this is to insure that innocent persons are not held responsible for wrongs they did not commit because it widely accepted among civilized persons that it is far worse to hold an innocent man responsible than to allow a guilty man to escape accountability.

The new law would require schools to switch to the "preponderance of the evidence" standard, which requires only a slight probability that the male committed the offense in order to punish him.  This law most certainly will increase the risk of holding innocent persons responsible for wrongs they did not commit.

ONE-SIDED ASSISTANCE FOR "VICTIMS": Beyond that, the persons who conduct this hearing are to receive training about how to conduct a hearing "that protects the safety of victims and promotes accountability." Nowhere in the bill is there even a hint, much less any requirement, that they should receive training about protecting the rights of the presumptively innocent who are accused of these offenses. "Promoting accountability" means that the persons conducting the hearing must be instructed on handing out appropriate punishments for offenses (it is widely believed by the persons pushing for this law that males accused of sex offenses on campus typically do not receive sufficiently severe punishments).

There is no provision that the accused are to receive representation of counsel, or that they even have the right to representation of counsel at the disciplinary hearing.

In contrast, the "victims" are to receive, among other things, the following: an explanation of their right to notify proper law enforcement authorities, including on-campus and local police; the option to be assisted by campus authorities in notifying such authorities; contact information for victim advocacy, counseling, health, mental health, legal assistance, and other services both on-campus and in the local community; an explanation of the availability of a victims' rights advocate to assist in reporting an incident and in locating and
utilizing victim services;  and a description of how the school shall help to enforce any order of protection, no contact order, restraining order, or similar lawful order issued by any criminal, civil, or tribal court, if the "victim" has informed such institution of such order.

A good article about the new bill is found here: http://www.theatlantic.com/national/archive/2011/04/the-save-act-trading-liberty-for-security-on-campus/237833/