The SaVE Act: Trading Liberty for Security on Campus

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New legislation meant to protect college women from sexual violence goes too far in attacking freedoms and defining "healthy" relationships

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If you take seriously statistics indicating persistent violence against women on college and university campuses, you have to acknowledge that disdain for due process and onerous restrictions on speech and belief that have long prevailed on campus do not alleviate sexual violence. Arbitrary, unfair disciplinary procedures, expansive speech and harassment codes, and intrusive "sensitivity trainings" have denied students fundamental freedoms for years, in the hope of creating "safe" and "nurturing" environments for women and other presumptively vulnerable groups. Yet, according to frequently quoted Justice Department studies, 20% to 25% of women on campus will be the victims of sexual assault this year. Recent campus murders, rapes, and alleged rapes dramatize these frightening statistics.

Since restricting fundamental liberties doesn't alleviate violence, it stands to reason that respecting fundamental liberties doesn't cause violence. But hostility or at best obliviousness to free speech and disregard for the rights of students accused of misconduct persist anyway (as the Yale Title IX complaint and recent directives from the Department of Education demonstrate). It's discouraging but not surprising that a new, well-intentioned bill aimed at curbing sexual violence on campus may inadvertently do more to encourage unfair prosecutions of students accused of misconduct and additional intrusions on freedom of belief.

What's objectionable about these provisions? They provide alleged victims with rights to information and assistance that may not be provided to their alleged assailants.

The Campus Sexual Violence Elimination (SaVE) Act, introduced in the Senate by Pennsylvania Democrat Bob Casey (similar legislation has been introduced in the House) requires schools to include incidents of alleged sexual violence in their annual crime reports and to develop and distribute (to students and federal authorities) policy statements outlining their sexual violence prevention programs and procedures for addressing allegations of assault, stalking, and other violent acts. What's wrong with these requirements? In general they seem reasonable, even necessary and virtuous. Casey's deputy chief of staff calls the bill a "no-brainer," and opposing it, you do risk being accused of supporting sexual violence. But a general account of the bill is un-revealing. Its disregard for individual rights is in the details -- specifically the detailed procedural and programmatic mandates.

The SaVE Act implicitly assumes the guilt of students accused of sexual violence or stalking and ensures that guilt is fairly easy to establish. It requires schools to employ the lowest possible standard of proof -- a preponderance of evidence -- in disciplinary hearings. This requirement conforms to a recent Department of Education directive, which seem likely to result in a repressive crack-down on alleged sexual misconduct. Critiquing the new rules, former Department of Education official Hans Bader stresses that "'preponderance of the evidence' means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined." It also means that students may be found guilty of conduct that constitutes a criminal offense, expelled, and exposed to civil and criminal liability without any of the protections afforded criminal defendants in formal judicial proceedings, including representation by counsel.  

The SaVE Act's assumption that untested accounts of victimization are accurate and true is also evident in the procedures schools must adopt upon receiving reports of violent offenses. The self-identified victim (who is nowhere in the bill accurately described as an "alleged victim") must receive an explanation of his or her rights, information regarding counseling and the assistance of victims' advocates, and options for changing residence or class schedules. What's objectionable about these provisions? They provide alleged victims with rights to information and assistance that may not be provided to their alleged assailants. The SaVE Act does not require school officials to extend similar consideration to students accused of serious misconduct -- perhaps wrongly. Schools may choose not to inform accused students of their rights (of course they have relatively few) or to advise them about counseling or schedule and residency change options.

Violence prevention programs mandated by the SaVE Act are almost as worrying as the mandatory disciplinary proceedings. Schools must conduct prevention and awareness programs for all new students and employees. In addition to providing relatively objective information about reporting, protective measures, and disciplinary procedures, administrators must lay down the law on highly subjective matters, like "the elements of healthy relationships" and "bystander intervention"  -- the "safe and positive options" open to someone who perceives a risk of violence or stalking.

Prevention programs must also include a "definition of consent in reference to sexual activity," a requirement reminiscent of the notorious, unself-consciously absurd sexual consent guidelines issued by the late Antioch College in the 1990s. Its detailed prescription for consensual sex included these mandates: "The person(s) who initiate(s) the sexual activity is responsible for asking for consent. The person(s) who are asked are responsible for verbally responding. Each new level of sexual activity requires consent."

Policies like these are easily mocked, but there's nothing funny about the prospect of enforcing them with little regard for due process. Requiring schools to define healthy relationships and encourage bystander interventions is equally un-amusing. The requirement threatens freedom of speech and belief. Given the general fear and loathing on campus of offensive or demeaning speech, bystander intervention guidelines may well encourage students to equate the risk of violence with the expression of sexist or homophobic speech and ideas. Official definitions of "healthy relationships," which students would decline to adopt at their peril, are especially troublesome. They bring federal and school officials into the bedroom (enlightened self-interest should make feminists especially wary of them) and seem destined to violate the freedom of conscience of students who harbor religious objections to homosexuality or sexual equality in heterosexual relationships.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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