To the surprise of many, three Republican U.S. senators have joined the Democrats in supporting the weakening of due process rights of students accused of rape and sexual assault in campus hearings.
Along with earlier answers from Marco Rubio, the offices of two additional Republican senators, Kelly Ayotte of New Hampshire and Chuck Grassley of Iowa, have now responded to questions submitted by the Washington Examiner’s Ashe Schow. (To date, none of the four Democratic co-sponsors have responded to Schow, including Connecticut’s Richard Blumenthal, who oddly implied that 19 percent of college women have filed sexual assault complaints.) So it appears that a broad, bipartisan consensus exists to weaken due process on campus.
Grassley’s spokesperson answered most of Schow’s questions; Ayotte’s office provided a stream-of-consciousness response that evaded much of what Schow had asked. Ayotte is a former state attorney general. Grassley has been a legislator—at the state or federal level—since 1958. That the two experienced lawmakers seem contemptuous of due process is deeply disturbing.
According to Ayotte’s spokesperson, the bill “will ensure that only those who are properly trained are investigating these crimes, benefiting both the victim and the accused.” Grassley’s spokesperson added, “It is up the victim to decide whether to report a crime to local law enforcement.” The overwhelming majority of campus sexual assault cases seem to be not like the Duke lacrosse case (a fantasist imagining a non-existent occurrence) but instead sexual contact between two people, one of whom subsequently alleges a rape, with the other subsequently claiming consent. But the language of Ayotte and Grassley presumes guilt: since the accuser is called a “victim,” the only way the accused student can be exonerated is by proving his innocence, perhaps by showing that someone else committed the rape. The existence of the crime, however, is presumed.
The Ayotte/Grassley language is particularly problematic in light of their bill’s requirement that colleges publicly list all instances in which students had not been found culpable of sexual assault. That is: the two senators are fully aware that some campus sexual assault cases—as tilted as the procedures are toward guilty findings—end with the accused student deemed not culpable. Does Ayotte, for instance, still believe that an accuser who can’t prevail in a process where the accused has no lawyer and no right to cross-examination and no right to meaningful discovery is still a “victim”? Does Grassley, as his spokesperson weakly claimed, still believe that this reporting requirement won’t at least cause pressure for “a predetermined outcome for any proceeding”?
Ayotte’s spokesperson used revealing language in another respect. “Campus sexual assault,” she remarked, “is a serious and disturbing crime.” This statement might be deemed a Kinsley gaffe (“when a politician inadvertently tells the truth”). Everyone knows that sexual assault is a “crime,” as the spokesperson admitted. But the fiction behind the efforts of OCR, the McCaskill bill co-sponsors, and the anti-due process activists is that colleges are investigating not crimes but violations of college procedures, and therefore the school has no obligation to provide meaningful due process. At least Ayotte has admitted this isn’t true. The New Hampshire senator should now say which other “crimes” she believes college administrators, rather than law enforcement officials, are competent to investigate and prosecute—and how many other pieces of legislation she plans to co-sponsor to bring about this development.
One final issue: Grassley’s spokesperson claims that funding for this crusade against due process must come from the colleges themselves. “The university,” the spokesperson noted, “will be responsible for any new requirements in the bill and be responsible to find the funds within its budget, whether that be from an endowment, trimming administration costs, tuition, or any other area.” So precisely how much does the Iowa senator consider an appropriate tuition increase for his anti-due process effort? Five hundred dollars a year? One thousand? If universities don’t want to increase tuition for this unfunded mandate, should they cut faculty positions? The suggestion that schools could survive by “trimming administration costs” is particularly rich, since the McCaskill-Grassley bill requires schools to increase administration costs by hiring new people to deal with sexual assault matters.
The more than comes out about the bill co-sponsors’ intent, the more troubling their work seems.