Senate Committee Conducts Hearing on Campus Sexual Assault

The United States Senate Judiciary Subcommittee on Crime and Terrorism discussed the issue of campus sexual assault in a nearly two-hour-long hearing earlier today. Chaired by Senator Sheldon Whitehouse, the hearing primarily explored the importance of formally involving law enforcement in addressing this issue.

Senator Whitehouse kicked off the proceedings by making a powerful argument in favor of bringing law enforcement into the process (click on the link for video):

As a former United States Attorney and Attorney General for my state, I am concerned that law enforcement is being marginalized when it comes to the crime of campus sexual assault. I am concerned that the specter of flawed law enforcement overshadows the harm of marginalized law enforcement. Anything can be done badly. But law enforcement done right makes sure forensic and electronic evidence is properly collected and preserved. It empowers the victim. It informs her of her continuing power through the stages of investigation and prosecution. It brings professionalism and tools like subpoenas and grand jury in the place of amateur university investigations. It eludes the built in conflict of interest of a university that wants the sexual assault problem minimized or hushed. And it sends an important societal signal when after a rape the crime scene has police tape up, and evidence vans, and officers taking statements—a signal that what happened was serious. At its best, law enforcement response is victim-centered and well coordinated with both medical and mental health and advocacy professionals.

When a rape victim is steered away from law enforcement, based on uninformed choices on proceeding or because the relationship between the university and law enforcement is so weak that contacting law enforcement is a step into a dark unknown, and the victim later loses the chance for justice, she has been victimized all over again. The student has the right to know that delays in opening an investigation and collecting evidence could mean the disappearance of evidence all together and could end up opening up devastating questioning by a future defense attorney. Until we are willing to put more information and control right away in the hands of victims they simply will not trust the system enough to report sexual assaults in the first place. We know this sadly from experience.

FIRE agrees wholeheartedly with Senator Whitehouse’s emphasis on the proper role of law enforcement. We strongly believe that the best approach to addressing campus sexual assault must center around relying on the universities to provide education, accommodations, and support pursuant to Title IX, while leaving the investigation and actual adjudication of allegations to law enforcement professionals and courts.

Senator Chuck Grassley, who will chair the Senate Committee on the Judiciary when Congress reconvenes in January, echoed Senator Whitehouse’s remarks by adding:

I think a crime of rape off campus or a crime of rape on campus ought to be treated the same way. And the sooner it’s treated the same way, the sooner the message is going to get out that you can’t get away with something on campus that you couldn’t get away with someplace else. … It’s high time to make sure that a crime is a crime wherever it is committed and treated the same way. And when it is treated universally the same way we will have less rape on campuses.

FIRE also agrees with Senator Grassley that it is dangerous to treat sexual assault differently on college campuses from the way it would be treated in the community at large. We hold this belief primarily for two reasons. First, separate systems for addressing sexual assaults on campus ignore the many victims not privileged enough to be enrolled in college, as FIRE President Greg Lukianoff noted recently. Second, and equally importantly, maintaining a system where complainants are treated differently on campus than they would be treated off campus is problematic. Because campuses provide victims with a lower standard of proof, utilize definitions of consent that effectively flip the burden of proof onto the accused, and prohibit cross examinations, complainants are predictably steered away from the criminal justice system until it is often too late to initiate an effective law enforcement response. This approach leaves violent predators on the streets.

After the opening comments, the hearing was opened for the testimony of Senators Claire McCaskill and Kirsten Gillibrand, who both reiterated their determination to get the Campus Accountability and Safety Act (CASA) passed in the new Congress. Disappointingly, during her remarks, Senator McCaskill backed off of her earlier statement defending the leadership of law enforcement professionals in combating sexual violence. Instead, Senator McCaskill argued:

Right now because the criminal justice system has been very bad, in fact, much worse than the military and much worse than college campuses in terms of addressing victims and supporting victims and pursuing prosecutions, there is almost a default position that victims have taken through advocacy groups that they might just be better off doing the Title IX process.

FIRE has some common ground with Senator McCaskill and hopes to work collaboratively with her to improve CASA. But we are much more skeptical than the Senator regarding campus adjudication systems’ track record and capacity to handle these crucially important cases. As we have noted before, “No one is happy with the way campuses currently deal with sexual harassment, sexual violence, and rape—not victims, not the accused, not parents or loved ones, not administrators, not university counsel, not defense attorneys, not civil liberties advocates, and not the general public.”

Senator Gillibrand followed Senator McCaskill’s comments with the following:

Our ultimate goal should be that 100 percent of survivors on campus of campus assault feel comfortable and confident reporting to law enforcement so that alleged assailants are legally held accountable through due process. This is a long term goal that we have to strive for. But time and again, I have heard from far too many survivors of campus sexual assault that they have felt revictimized by the process of trying to seek justice for the crime committed against them. This is an inescapable fact that we have to fix. The police should be the first responders when a crime this serious occurs, but ... a vast majority of police departments have responded to reports with victim blaming and belittlement, and as a result, survivors have lost trust in law enforcement.

FIRE is glad that Senator Gillibrand agrees that the long term goal must be to have police and law enforcement experts serve as the first responders. But this should be the immediate goal, as well. There are thousands of law enforcement professionals who do a superb job of pursuing cases involving sex crimes, and with proper training and funding, many more can be counted among them.

Further, if we can get more cases into the hands of professionals rather than amateurs at the onset, we will be able to better identify the causes for delayed or failed prosecutions. For example, while some cases are stalled because of victim-blaming and outmoded ways of viewing sexual assault victims, others fail to proceed because of the lack of evidence that results when victims approach law enforcement and medical professionals after lengthy delays. Taking the step of referring cases to experts immediately will go a long way to identifying opportunities to reform law enforcement investigations, where necessary, so that they serve our communities better.

Stay tuned for analysis of the input provided to the subcommittee by experts who served as witnesses on the second panel, which I’ll write about tomorrow here on The Torch.