Why the SaVE Act Harms Women on Campus

This is in response to many posts at recent on-line sites related to campus sexual assault and violence against women in higher education:

Please resist supporting or seeking support from any group that lobbied for the Campus SaVE Act. It is profoundly anti-women’s equality; it’s overtly sexist and it explicitly segregates and subjugates women by requiring or allowing the redress of violence against women on campus to be subjected to less protective legal standards compared to all other forms of civil rights violence.

That women WERE equal under Title IX BEFORE SaVE (at least in the written law—if not its enforcement) for more than forty years and then became expressly UNequal in higher education in 2014 is outrageous, though maybe not surprising. Only when victims started speaking up did Congress slap them down by giving schools express permission to devalue civil rights violence against women.

That ANY group supported the SaVE Act is unconscionable. That the AAUW and RAINN supported SaVE (among other seemingly “pro” women’s rights groups) is abhorrent and speaks volumes about the nature of lobbying AND co-optation.

For those of you who care about the fair treatment of women, please take the time to read the law critically, and read the lawsuit that was recently filed to stop SaVE so you can understand WHY certain of its provisions are so offensive and dangerous.

Speaking of which, recent queries regarding whether certain counselors on campus and “peer” counselors in particular are mandated reporters should be understood in the context of SaVE.

Unlike pre-SaVE standards which required schools to count and provide redress for even unreported incidents about which school officials “knew or should have known,” SaVE changes the rules such that only reported incidents need be redressed. This is NOT the rule for all other forms of civil rights violence against other protected class categories (and was NOT allowed under the April 2011 Dear Colleague Letter) where a “knew or should have known” standard applies. (Before SaVE “actual knowledge” was only required for real world lawsuits where “deliberate indifference” requires such knowledge, but administrative redress under Title IX and Title IV does not).

SaVE enables severe undercounting and inadequate redress, and will cause misleading data to evolve—especially over the next year—when data will suggest, falsely, that the numbers of sexual assaults have diminished when in fact the numbers will surely go up significantly (but will not be counted because they will not be “reported) simply because so many of SaVE’s provisions prevent or inhibit reporting (as well as equitable redress).

Whan can be done?

Because of these new undercounting incentives in SaVE it would behoove schools that care about women’s equality to REQUIRE reporting in the strongest possible language by ALL persons on campus—peers and others—and ensure that all reports—whether formally PURSUED or not—be gathered in a central file for ease of measurement and ease of identifying repeat offenders.

To further incentivize reporting of cases where the victim is incapacitated, it is critically important that schools develop written policies declaring in strong terms that they WILL INFER FROM BEHAVIORAL SYMPTOMS ALONE that a victim was drugged. Real world criminal courts draw such inferences from behavior alone—and do NOT need proof in the form of blood or urine test results. Given the quick dissipation rates of rape drugs, such evidence is rarely present, yet the absence of measured proof typically leads to the inappropriate inference that there were no drugs on board.

Policies should also provide information about inexpensive, readily available and NOT time-sensitive hair testing for victims because unlike with blood and urine, drugs do not dissipate in hair and CAN be tested to determine the presence or absence of drugs. This can add significant corroborative weight to behavioral symptomatology, but most importantly, the fact that offenders are TOLD that such tests WILL be conducted and that you WILL draw an inference from behavioral symptoms will deter at least some offenders.

As for whether expulsion of offenders should be mandatory, why all the handwringing about a “chilling effect” on victims? Fear of causing an expulsion is hardly an excuse not to propose expulsion as a punishment when most victims decline to report for the exact opposite reason—fear that nothing will be done.

The real problem is that mandatory expulsion will give schools an even stronger incentive NOT to find anyone responsible simply because they want the tuition dollars to continue to flow. Offenders won’t fear expulsion no matter what the rules say because they consider what actually happens—not what the rule says could happen. Most school codes already say that expulsion could happen—but offenders know it never does happen.

Rape law in the real world says an offender could get “life” behind bars—but only 2.5% spend even ONE DAY behind bars; a number that hasn’t changed in decades.

Rather than mandating expulsion, schools should enact rules that openly and loudly celebrate the shaming of all forms of civil rights violence—EVERY TIME IT HAPPENS.

Many schools will put “mandatory expulsion” in their codes now that the SaVE Act is in place because SaVE gives schools much more flexibility to rule in favor of the offender without getting into trouble with Department of Education’s Office for Civil Rights. In other words, putting a seemingly tough rule in place will make a school LOOK like they give a damn—but SaVE ensures that schools won’t ever have to actually expel anyone.

For example, under SaVE, schools can apply a burden of proof much stricter than mere preponderance. With preponderance in place (and enforced correctly which is exceedingly rare) schools were required to take some action so long as they believed the victim more than they believed the accused student’s denial of responsibility. With a higher burden of proof—such as “clear and convincing” evidence or “adequate proof” etc.—schools have a perfect out because they can claim to believe the victim (thus send her off for counseling and tell her parents they support her) without ever having to punish the perpetrator. So both families keep paying tuition. Brilliant.

To be truly equitable, schools should punish violence against women on par with all other forms of civil rights violence. If violence based on race leads to expulsion, then violence against women should lead to expulsion. No hand-wringing is necessary. Equity is good enough—no hierarchies allowed.

This is exactly what was anticipated by the enactment of Title IX. It was enacted to ensure that discrimination and violence against women on campus would be treated EXACTLY the same as violence based on race, ethnicity, etc., but Title IX was instead propagandized for decades as a sports equity rule.

As soon as students started to understand that Title IX is primarily an anti-discrimination—anti-violence law, it was gutted by SaVE with (sadly) the support of advocates, including well-intentioned students who simply didn’t know they were being used.

They still don’t.

But everyone can still stand up for equity (even though SaVE removed Title IX’s regulatory mandate of “equitable” treatment for violence against women) by OPENLY CHALLENGING SaVE.

Bernice Sandler and I have been talking with a few folks at certain universities about their willingness to speak out against SaVE with the same vigor they would feel if Congress enacted a law to allow schools to subject the redress of racist violence to less protective standards compared to violence against other protected class categories.

If your school really gives a damn then you should consider standing up for women’s equality too. Just because SaVE allows women to be mistreated doesn’t mean you should acquiesce. The moral imperative is obvious (but better yet the schools we are talking with will likely USE their commitment to women’s equality as a selling point—to attract more female AND male students who want to learn in an environment where 20-25% of young women are NOT victimized).

If young men want to go to college so they can drug and rape young women they will apply to schools that embrace SaVE’s offensive standards such as utilizing a burden of proof stricter than preponderance, and making “final determinations” in response to a victim’s complaint on the eve of her graduation. (SaVE clearly allows “final determinations” to be made years after the rape—if at all—which means a school can find in favor of a victim while letting the offender stay on campus during his “appeals” and then, on the eve of graduation, reverse the finding in favor of the victim and give the offender a clean slate).

It’s interesting how so many of the groups that find this “chain of command” style of decision-making acceptable in college find it horribly offensive in the military even though rape is more prevalent in higher ed than in the military or the real world and reporting rates, prosecution rates, AND conviction and punishment rates are better in the military and the real world compared to higher ed.

It’s not complicated. Pro-rape schools will apply SaVE and anti-rape schools won’t. Smart parents will know where to send their money and their children.

Clery Act data won’t matter anymore, which makes the issue simpler in many respects.

Safer schools—like safer countries—will simply be those that refuse to segregate and subjugate women.

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Wendy Murphy
Wendy is an adjunct professor at New England Law|Boston where she has taught a seminar on sexual violence for more than ten years. She developed and directs two projects in conjunction with the school’s Center for Law and Social Responsibility. The “Sexual Violence Legal News” project is an alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The “Judicial Language Project” uses socio-linguistic research to critique the language used in law and society to describe violence against women and children. She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught “Reproductive Rights and Technologies” at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has also taught courses in reproductive technologies and constitutional criminal procedure. She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992. Wendy wrote the first-ever law review article connecting sexual assault to Title IX in 2006 and filed the first-ever OCR policy complaint against a university in 2002.

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