"The price of a college education should never be the risk of a sexual assault," Sen. Kirsten Gillibrand, D-N.Y., told a Senate hearing Wednesday. Too many colleges don't treat rape, she observed, as "the violent felony that it actually is." Her solution is the bipartisan Campus Accountability and Safety Act, or CASA, which would require college campuses to designate confidential advisers to victims of sexual assault and establish rules for campus investigations of sexual assaults.
Gillibrand means well; there's no question about it. But Congress telling American universities how they should handle campus rape truly is an instance of the blind leading the blind. If the goal is to treat campus rape as the violent felony it is, don't expect deans and assistant deans to conduct investigations -- unless you want to over-politicize the process. If you want to treat rape as a crime, leave assault investigations to the police.
When you think about it, it doesn't make any sense to treat rape differently just because it happened on a campus. Victim activists support allowing students to bypass the judicial system by appealing to university tribunals, which could result in perpetrators being expelled or removed from campus. "We're going to throw him off campus," Kevin O'Neill, executive director of the Fraternity and Sorority Political Action Committee, told me. If a sexual predator is kicked off campus but free to roam the streets, the public at large will be less safe. If victims file complaints with their colleges but not cops, sexual predators win.
According to the Bureau of Justice Statistics, rape and sexual assault rates are greater for women ages 18 to 24 who are not in school (7.6 per 1,000) than they are for students (6.1 per 1,000). So you've got Congress looking to create an extra layer of enforcement for a population less at risk.
Gillibrand has amended CASA to win bipartisan support. Thus, the measure does not include one of the more extreme measures pushed by campus feminists and already written into California law for institutions of higher learning -- the affirmative consent standard, which requires sexual partners to consent affirmatively. Or, as University of California President Janet Napolitano explained at the hearing, "consent must be knowing, revocable and intentional." She added, "It really, in a way, shifts the burden so that the survivor isn't the one always trying to explain what happened."
"They're not trying to sugarcoat it at all," marveled Joseph Cohn of the Foundation for Individual Rights in Education. "They're being clear that they are shifting the burdens of proof. That's what the affirmative consent movement is all about." Civil libertarian beware: Affirmative consent and some academic tribunals have moved the burden of proof onto the accused -- not the accuser, where it has belonged.
As a woman, I believe that false accusations are rare, but they do happen. Last year's Rolling Stone story about an alleged gang rape at the University of Virginia illustrates why no legislative body should undercut due process for the accused. Gillibrand's CASA would mandate that confidential advisers assist "survivors of sexual harassment"; it wouldn't really try to protect due process for the accused. That's where the Safe Campus Act, sponsored by Republican Reps. Matt Salmon of Arizona and Pete Sessions and Kay Granger of Texas, would provide needed protection. The measure would establish the right of the accused to counsel during disciplinary proceedings regarding sexual violence.
Jean Mrasek -- chairwoman of the National Panhellenic Conference, which represents 26 sororities -- told me her group is grateful that CASA has brought campus rape to the attention of the public. She expects Congress eventually to produce a bill with parts from both measures. The Salmon House bill would allow "for the experts to start" investigations, she noted, without preventing colleges and universities from being involved. "It's time to recognize that an act of sexual violence should be treated like the heinous crime that it is."
I'd rather see Congress leave campus rape to law enforcement, but that's not going to happen. So look to the Safe Campus Act for balance. It would establish a 30-day period during which law enforcement would have exclusive jurisdiction over a sexual assault case.
Before an academic tribunal begins, accusers would have to go through the police -- which would boost the chances of timely gathering of evidence, including rape kits. As O'Neill noted, it's not enough to get rapists off campus; "we also want them incarcerated."