The Sexual Assault Response Act requires all of the state’s universities and community colleges to adopt a comprehensive policy on sexual assault that a critic says could hurt the rights of the accused in sexual assault cases.
Joe Cohn, the Legislative and Policy Director for FIRE, said this year’s bill, House Bill 1300— authored by state Rep. Angela Cockerham (D-Magnolia) — is better than the previous two iterations, but still not ideal.
“HB 1300 is not the worst bill we’ve seen on sexual assault, but it’s far from good,” Cohn said. “They’re (the bills) incrementally improving, but they’re still problematic.”
One of those problems was the language in the bill, which labels anyone who brings an accusation as a survivor. He said this signals to people in charge that impartiality isn’t important in the proceedings.
He also had problems with the definition of consent in the bill, which he said means the institution which doesn’t make clear that it has to prove that the sexual activity was non-consensual.
Cohn also said that the bill doesn’t recognize some of the jurisdictional limits of Title IX. He cited a 1999 U.S. Supreme Court decision, Davis v. Monroe County Board of Education as setting these boundaries.
This decision says that institutions have a duty under Title IX to respond to known acts of sexual harassment or violence either on the institutional grounds or in the programs and activities of the institution.
Cohn said that those who oppose replacing Obama administration era regulations want the jurisdiction of institutions extended off-campus if both people involved are students. This would go far beyond the guidance given by the Davis decision.
He said HB 1300 takes that approach.
There is a provision in the bill that would have any federal guidance or regulation supersede it. Cohn said it’d make more sense to wait for the final regulations, due this summer, before passing a bill.
There have been two previous bills — all authored by Cockerham — which would’ve codified now-superseded guidance provided by a problematic “dear colleague” letter sent to federally-funded universities and colleges by the Obama administration in 2011 concerning Title IX and sexual harassment and assault.
The U.S. Department of Education and its Office for Civil Rights instructed higher education institutions in the letter to use a lower evidence standard to determine guilt and also mandated that accusers would also have the right to appeal a verdict, which meant even baseless allegations could result in a retrial.
Universities and colleges that receive federal funding are required to obey all Title IX regulations or risk having their funding pulled.
For three consecutive years, Cockerham has gotten a bill on campus sexual assault out of the House, but it hasn’t fared as well in the Senate.
In 2017, Cockerham’s first sexual assault bill died in the Senate Judiciary A Committee.
In 2018, a similar bill by Cockerham was doubled-referred (usually a death sentence for a bill) to a pair of Senate committees, Universities and Colleges and Judiciary A, where it also died.
This year, HB 1300 passed by a 115-3 margin on February 13 and has yet to be referred to a committee in the Senate for consideration.