Bills in the Missouri House and Senate would make sweeping changes to the way universities handle sexual harassment and assault claims, giving the accused more power over the process.
The measures, introduced by Republicans, reflect concerns on the right that as the national conversation over sexual misconduct grows more impassioned, one consequence has been an increase in false claims and lack of due process for the accused. The proposals also dovetail with changes to the federal Title IX process under review by Secretary of Education Betsy DeVos.
But multiple experts in the field said that, if passed, the Missouri bills would afford more rights to those accused of campus sexual assault than any other state.
The proposals would change how Missouri universities handle complaints under Title IX of the federal Education Amendments of 1972, intended to address discrimination in education on the basis of sex. The House version is more detailed than the Senate’s, and sponsors acknowledged both bills will be amended before any final action. But as currently drafted:
▪ Both versions would borrow judges from the existing administrative court system to hear appeals from students punished by universities for sexual misconduct. The Senate and House bills would both entitle the accused to see the evidence against them and ban schools from declining to consider evidence. The House version alone would allow cross examination of the accused, a particularly controversial provision that critics say re-victimizes survivors.
▪ Both versions say that if the administrative courts find that a student was not given due process, a student can sue his or her university and the employees who conducted the investigation. The state attorney general would also be able to investigate and punish universities.
▪ The Senate version would allow those accused of sexual misconduct to personally sue whoever accused them if the administrative courts decide it was a false claim. The bill doesn’t differentiate between claims that are intentionally false and those that cannot be corroborated.
Wendy Murphy, the director of the Women’s and Children’s Advocacy project at New England Law Boston, who has litigated Title IX cases for more than 20 year, said the proposed changes would only further victimize women in a system that favors the accused.
“I see this system as designed to message females that, especially in the context of education, you’re supposed to be raped and be quiet. Because there’s no upside. There’s no upside. It’s all burdens, hurdles, punishment, stigma, suffering, that’s what you get for reporting,” Murphy said.
There are more than 10 million women enrolled in universities in the country, the National Center for Education Statistics estimated. Meanwhile, The Department of Justice estimates that one-in-five college women are sexually assaulted during their time at school.
Murphy said that the Missouri measures are aimed at over-correcting for a problem that exists largely at the margins.
The National Sexual Violence Resource Center estimates that between 2 and 10 percent of sexual assault reports are false, and that less than 40 percent of sexual assaults that occur are ever reported. The number of sexual assaults each year is vastly higher than the number of false accusations.
“You don’t build rules about the rare exceptions,” Murphy said. “You design laws because you care about the class of people who are injured every day at high rates. That’s what lawmakers are supposed to care about.”
Sponsors of the bill argued there’s a lack of basic fairness and due process for those accused of sexual harassment or assault at school, so they’re doing right by everybody.
“It is a safeguard for due process,” said Rep. Dean Dohrman, R-Pettis County, sponsor of the House bill. “Title IX has a lot of vague language in it. It leaves a lot of the administrative portions of the bill to the particular university or college and we just want to make sure that everybody’s rights are protected in the process.
“We want to make sure that if a complaint is brought forward it’s taken seriously, that the truth is discovered and that everybody is confident in the resolution at the end,” he said, adding that they’re working with higher education groups and others to learn more about the issue and improve upon the bill.
Sen. Gary Romine, R-Farmington, sponsor of the senate bill, acknowledged concerns about a chilling effect on harassment and assault survivors. He said that will warrant further discussion in legislative hearings and debates.
“We want to protect the integrity of both parties, the accused and the accusers,” he said.
Critics, such as Rep. Kip Kendrick, D-Columbia, question whether it’s wise to tangle an internal organization’s process with the legal system. They ask whether it would be harmful to women and whether it would put federal funding for Missouri universities in jeopardy if they were to comply.
“I have very real concerns with this legislation for many reasons. There’s a whole laundry list of reasons why this is a horrible idea for Missouri,” Kendrick said.
Matthew Huffman, public affairs director of the Missouri Coalition Against Domestic and Sexual Violence, said that many of the differences between how campuses and courtrooms handle cases are intentional. The right to a lawyer isn’t guaranteed at all schools because many students can’t afford it, so it would be unfair, he said, and cross examination is missing largely because it would re-traumatize victims.
“Many universities know how to handle their own campus dynamics,” Huffman said. “So while we can find ways to standardize the process, I think we also need to consider that universities know what works well for them and more importantly students know what’s going to affect them and what they need in these circumstances.”
The current Title IX system has evolved from a simple rule: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The law was understood for years to provide funding equity and other protections for women’s athletics. In the last roughly 20 years, the law has evolved so that schools must treat all sex-based discrimination, including harassment and assault, in much the same way as racial bias.
In 2011, former President Barack Obama issued what’s become known as the “Dear colleague” letter, which set forth aggressive guidelines on how universities should investigate such claims. If schools don’t police sex-based discrimination, they risk becoming the subject of a federal investigation and even losing their federal funding, which is contingent on compliance with discrimination laws.
The issue’s visibility increased over the last eight years as schools began investigating sexual misconduct claims much more aggressively. A backlash followed, leading to the push for more due process protections.
But Murphy said this push for due process is actually just a form of discrimination against women that puts the Missouri bills on dubious legal footing.
“When you only want due process for people who beat and rape women that’s not called due process, that’s called sex-based discrimination,” she said, which she said would open up public schools to lawsuits.
Dohrman said he considers the legislation as drafted to be the beginning of a conversation, not the last word.
“That’s why we have hearings. If that’s an issue that needs to be brought up, and if that’s something that we need to consider then we’ll be going through an amendment process on that bill,” he said. “We’re not saying the bill is perfect. We started a conversation and we want to make sure that everyone’s rights are protected.”