This spring, colleges across the country are rewriting the rulebook when it comes to preventing and reacting to sexual assault on campus, thanks to the implementation of a law called the Campus Sexual Violence Elimination (SaVE) Act. Passed last year, it sets new requirements for schools when it comes to education and punishment.
“This is about curing the disease versus treating the symptoms,” said S. Daniel Carter, director of a multi-faceted campus safety initiative organized by the VTV Family Outreach Foundation, a Centreville-based campus safety nonprofit initially funded by survivors of victims of the Virginia Tech shooting. Rape at colleges is common, studies show. According to the National Institute of Justice, about one in four undergraduate women become victims of sexual assault. “We want to inoculate against the disease that is sexual violence on campus,” Carter said.
But debate rages on in the higher education community about just how to do that—especially when it comes to kicking out students found responsible in rape cases. Nowhere does the question loom larger than at UVA, where acts of student-on-student violence—one a high-profile murder, the other an alleged rape now central to a federal lawsuit—have kept the Campus SaVE Act at the center of a national conversation about college sexual violence.
Like schools all over the U.S., UVA is now figuring out how to adjust its policies so that it’s in line with the new regulations, said Nicole Eramo, the University’s Associate Dean of Students.
“These changes are likely to include defining dating/domestic violence and stalking as their own terms and separating them from under our current sexual harassment definition,” she wrote in an email this week. In addition, the University is hiring a prevention coordinator to help ramp up education efforts, she said, which will include a stronger focus on the definition of consent.
Another big change dictated by the SaVE Act: All students involved in sexual misconduct proceedings will have the right to a representative of their choosing, in addition to the advisors appointed by UVA. That means the University will have to start allowing students to have a lawyer represent them if they choose—something that had been forbidden in the past.*
But the debate over how to stop sexual assault on college campuses is far from over, and the history of debate over the Campus SaVE Act reveals why.
The new law has roots in Central Virginia. The VTV Family Outreach Foundation started lobbying for legislation to prevent sexual violence at schools in the spring of 2010, said Carter. Then came May, when UVA fourth-year Yeardley Love was murdered in her off-campus bedroom by her boyfriend, George Huguely. Tom Perriello, then the U.S. House Representative for the slice of Albemarle that includes the University, threw in with the Foundation, seeking to add provisions preventing dating violence and stalking.
It was Perriello who introduced the Campus SaVE Act on the floor of the House in December of that year. By then he’d lost his bid to keep his seat, so he missed most of the fight that followed.
The the bill, which was folded into the 2013 Violence Against Women Reauthorization Act, had a two-pronged approach. It sought to require universities to report all cases of sexual assault and dating violence in annual crime statistics; and it set standards for disciplinary action to ensure victims could get recourse.
The details of the latter effort nearly sank the measure. Last February, in the VAWA’s final days as a bill, the House stripped the Campus SaVE Act provision.
The sticking point became clear when the SaVE Act was added back in at the last minute, minus one key detail: A requirement that school disciplinary boards use a “preponderance of evidence” standard when weighing sexual assault cases, instead of the “clear and convincing” standard applied in criminal cases. In other words, if a school was more than 50 percent sure a victim was telling the truth about a rape, it would have been required by law to find in her favor.
The federal government had already weighed in on the issue two years before in the form of a “Dear Colleague” letter from the Department of Education’s Office of Civil Rights, which told schools they had to adopt the less-strict preponderance standard. It was a Title IX issue, said OCR—sexual violence at colleges leads to gender-based disparity in access to education, and since the government requires only a preponderance of evidence in a civil rights dispute, schools must do the same.
But supporters of the Campus SaVE Act lost their chance to write that policy into law when it came to evidence standards. The preponderance language didn’t make it in.
That’s as it should be, said Joe Cohn, the legislative and policy director for the campus civil liberties group Foundation for Individual Rights in Education, which lobbied against the Campus SaVE Act largely because of the preponderance standard.
There’s a huge amount at stake for students accused of sexual assault, Cohn said, and a high burden of proof is appropriate for what amounts to a decision on a felony offense. Schools don’t always let accused students know the details of the conduct charges against them, “so literally the only protection you have is that the other side has to prove it,” he said.
And Cohn said there’s a big difference between a federal discrimination lawsuit and a campus disciplinary proceeding.
“Any time you sue someone in actual court, you have all these other protections,” he said. “There’s a judge that’s present, not a 19-year-old sophomore.” It’s not that FIRE doesn’t think the stricter standard couldn’t work, Cohn said, but unless there are stronger protections for the accused, “it’s grossly unfair.”
Still, the preponderance standard is supposed to be the new normal. The Campus SaVE Act expressly states that it’s not meant to contradict existing directives from the government.
It’s enough for Carter. The new rules are about a lot more than the evidence standard, he said.
Until now, schools have mostly tried to teach students how not to get raped, Carter said. “The Campus SaVE Act is all about how not to rape. It teaches men and women about primary prevention, which changes the culture that tolerates sexual violence to begin with.”
There’s an emphasis on teaching consent, understanding the correlation between substance abuse and sexual assault, and encouraging bystander intervention. The hope, Carter said, is that “we will start to crack away at the cultures on campuses across the country where sexual violence is tolerated.”
Not everybody is satisfied, and the legal challenge of the Campus SaVE Act by a former UVA student, a woman known only as Jane Doe, is evidence of that. She and her lawyer have sued the government for a resolution of her long-standing complaint against the University for what she says was a mishandling of her own 2011 rape—she claims UVA didn’t stick to the preponderance standard when weighing her case, despite having adopted it as policy. The case essentially asks the courts to speak clearly where Congress punted, and determine from the bench whether the more relaxed standard should be the law of the land.
Advocates on both sides of the debate are still arguing the points, too. Cohn said FIRE has a mixed response to the rules now going into effect. He called the provision allowing students to choose their representative “a modest step in the right direction,” but said efforts to strictly define consent just don’t work.
“There’s this argument that the only consent is affirmative consent given repeatedly throughout the process, and that’s just not the way human sexuality has ever worked,” said Cohn.
But there is something basic that advocates agree on: The issue of sexual assault on campus is complicated and deep-rooted, and whatever schools were doing before to try to stop it wasn’t working. They may mostly be pushing on the problem from different angles, but everybody is looking to schools—UVA included—to adapt.
“What we do know is victims are coming forward in record numbers, getting the help they need, and we know that ultimately is the key to combating sexual violence in the campus community,” said Carter. “The Campus SaVE Act is designed to foster just that type of support.”
*Clarification: Initially, this story said UVA didn’t allow students to have a lawyer with them during disciplinary proceedings. In fact, UVA’s policy has allowed a lawyer to be present during such proceedings, but only as an observer.