The Connecticut legislature in the recently completed session passed House Bill 5029 “An Act Concerning Sexual Assaults, Stalking and Intimate Partner Violence.” This bill was adopted partly in response to complaints by several University of Connecticut students that their sexual assault complaints were not properly handled by the university. The bill, as passed, has many strong points, but there are some missed opportunities and some shortcomings.
The provisions are similar to recent recommendations made by the White House Task Force to Protect Students from Sexual Assault. As in the task force report, the bill requires colleges and universities to establish preventive programs and increases reporting requirements. Further, the bill establishes training programs on bystander conduct and protocols for response teams to provide resources to victims. The bill also clarifies who is responsible for processing complaints.
One problem with the Connecticut legislation is that it focuses only on students who have been victims. For example, it requires special training for any law enforcement officers responsible for investigating complaints by students of sexual assaults, stalking or intimate partner violence. Why should only student victims be dealing with trained police officers? Shouldn’t our treatment of victims be the same whether the victim lives in an inner city, a suburb or on a university campus?
Perhaps more important is the missed opportunity of dealing with the effect of alcohol and drugs on sexual assault, stalking and domestic violence. UConn formed the President’s Task Force on Civility and Campus Culture “as a way to deter and address sexual violence of any kind, harassment, intimidation, bullying and incivility.” University President Susan Herbst explained this program to the legislature’s Higher Education Committee and pointed out that UConn’s program includes expanding educational programming on alcohol and drug use. There is no question that there is a relationship between violence and sexual assault and drug and alcohol use.
The Connecticut bill should have included a requirement for regular reports on the number of sexual assault cases where alcohol and drug use were involved. In addition, it should have required reports that indicate the extent of drug and alcohol abuse on the campuses, such as how many students were hospitalized for drug or alcohol overdoses.
Another problem with the legislation is that it requires the acceptance of anonymous complaints. It is not clear how such anonymous complaints will be used. But it is entirely possible that the intention is for such complaints to be used as evidence against a defendant in a disciplinary hearing.
The largest issue that isn’t addressed in the state legislation is a federally mandated Title IX disciplinary hearing process. Student/defendants can be suspended or expelled by a hearing officer, even though the federal law provides the student with few of the rights to which he would be entitled in a criminal or civil court. The language of the Connecticut statute provides: “Victims of such assault, stalking or violence shall have the opportunity to request that disciplinary proceedings proceed promptly … Disciplinary proceedings shall be conducted … and shall use the preponderance of the evidence standard …
“Both the victim of such assault, stalking or violence and the accused are entitled to be accompanied to any meeting or proceedings related to the allegations of such assault, stalking or violence by an advisor or support person of their choice, provided the involvement of such advisor or support person does not result in the postponement or delay of such meeting as scheduled and shall have the opportunity to present evidence or witnesses on their behalf … Both victims and the accused are entitled to be informed in writing of the results of any disciplinary proceedings not later than one business day after the conclusion of such meeting …”. Connecticut General Statutes 10a-55m(b), as amended by HB 5029.
In addition, the federal Department of Education’s new guidance states that to comply with Title IX, “the parties should not be allowed to cross-examine each other.” Such disciplinary hearing process hardly conforms to standards of due process.
The tragedy is that even with this flawed hearing process, the public is not protected. If the hearing officer decides the student-defendant committed a sexual assault, the officer can expel or suspend that student and include a notation on his transcript that he committed a sexual assault. The student is then returned to the community with none of the restrictions that the criminal justice system could impose on a sexual predator; no incarceration, parole, probation or sexual registry. Sexual assault is a serious crime and should be treated that way. Unfortunately, the bill doesn’t address the issue of when an allegation of sexual assault should be handled in the criminal court system, instead of by some administrative hearing.
Schools need a process that is fair to and protects both the accused and the accuser.