July 2016 - Save - Leading The Policy Movement For Fairness and Due Process On Campus

Contact: Gina Lauterio

Campus Sexual Assault: Lawmakers Abandon Affirmative Consent, Turn to Traditional Law Enforcement Approaches

WASHINGTON / July 19, 2016 – Responding to high-profile cases at Stanford University, Vanderbilt, Baylor, and elsewhere, Democratic and Republican legislators are beginning to enact laws that emphasize traditional criminal justice approaches to curbing campus rape. Lawmakers have largely abandoned consideration of affirmative consent policies, which require intimate partners to indicate agreement at every step of sexual activity.

In the wake of the Stanford rape case, California lawmakers have begun debating whether to expand the definition of rape and establish minimum sentencing requirements (1). In Missouri, a bill was enacted on July 1 that directs universities to enter into a memorandum of understanding with law enforcement on sexual assault policies (SB 921) (2). Laws designed to strengthen the reporting of sexual assault cases to local law enforcement were enacted earlier this year in Hawaii (3) and Virginia (4).

In Congress, the House Judiciary Committee approved the Survivor’s Bill of Rights Act on July 7 (HR 5578). The bipartisan bill provides protections and access to a legal process for sexual assault survivors on campus and elsewhere (5).

Affirmative consent proposals made little legislative headway in 2016. In six states, affirmative consent bills failed to be approved before the legislature adjourned for the year: Hawaii (HB 597 and SB 3119), Iowa (HSB 637 and SF 2195), Maryland (HB 1142), Minnesota (HF 3100 and SF 3088), Missouri (SB 626), and North Carolina (HB 474).

Affirmative consent bills have been introduced three other states where legislatures are still in session – Michigan (HB 4903 and SB 512), New Jersey (A 2271), and Pennsylvania (SB 1005) — and the final outcome of these bills remains uncertain. Only in Connecticut was an affirmative consent bill for college students (HB 5376) enacted into law, but the bill does not define “sexual activity,” leaving the practical impact of the law in doubt.

SAVE has developed a bill that supports the rights of accusers and the accused. Titled the Campus Equality, Fairness, and Transparency Act (CEFTA), the bill encourages the referral of campus sex cases to local criminal justice authorities for investigation and adjudication (6).

The American College of Trial Lawyers recently issued a statement describing campus sex disciplinary procedures as “demonstratively unfair to the accused, with no right to representation or cross-examination.” (7)

Citations:

SAVE is working for fair, balanced, and constitutionally sound solutions to campus sexual assault: www.saveservices.org