The New Disgusting Sexual Assault Law: The Fair Campus Act

Originally published on The Radical Notion, with the title “The Campus Safe Act lives on in the Fair Campus Act: The New Disgusting Sexual Assault Law.”

Early last week, the insidious Campus Safe Act is dead in Congress. Activists spent months outlining the many ways the bill protected fraternities and sororities at the expense of sexual assault victims. Despite this major win, there is another piece of legislation lying in wait in Congress that aims to silence collegiate sexual assault victims.

H.R. 3408, or the Fair Campus Act, was introduced onto the floor of Congress without fanfare in July. It is mostly identical to the Campus Safe Act, however major media also stayed mostly silent on covering this piece of legislation. The lack of attention to the Fair Campus Act is extremely troubling because if passed the bill will strike down one of the most important protections collegiate sexual assault victims have when confronting their attackers in disciplinary processes—the preponderance of evidence standard.

In 2011, the US Department of Education’s Office for Civil Rights (OCR) mandated that all colleges and universities that accept federal money MUST use the “more likely than not” or preponderance of evidence standard when adjudicating sexual assault cases. When sexual assault cases are usually ‘he said versus she said’ arguments with instances of mind altering alcohol and drugs, it is nearly impossible to prove violence occurred “beyond a reasonable doubt.” It is simply fairer to victims and survivors to use the “more likely than not standard.”

The lower burden of proof also encourages victims to report their attackers by increasing the likelihood that they will be believed. In the United States, only 2% of rapists serve jail time which is unsurprising when one considers how often sexual assault is perpetuated on camera and juries are still unwilling to assign a guilty verdict. Universities are better legally equipped to remove and punish attackers than the federal court system because of this lower standard of proof.

The Fair Campus Act (H.R. 3408) aims to dismantle the “more likely than not” standard, thus adding an additional undue burden on victims. The bill’s exact wording is:

An institution of higher education may establish and apply such standard of proof as it considers appropriate for purposes of any adjudication carried out as part of an institutional disciplinary proceeding under this section (Italicizes were added by the author).

If colleges and universities are permitted to choose their own standard of proof it is unlikely that they will choose one that will result in more verified cases of sexual violence. Instead, universities will adopt standards that will raise the burden of proof to ensure that there are fewer cases of sexual violence on their campuses. In reality, this will mean fewer victims will see justice and more perpetrators will be free to stay on campus. It is in a college’s best interest to have low sexual assault numbers because, let’s be honest, what parent wants to send their daughter to a school known for having frequent instances of reported sexual assault cases? If the Fair Campus Act is passed it will effectively silence victims and dupe students across the country into believing that their campuses are safe from sexual violence.
The Fair Campus Act would create college campuses that are neither fair nor safe for victims. And like the Campus Safe Act, the Fair Campus Act is unsympathetic to the concerns of survivors. If enacted, it would be another impediment to justice for collegiate sexual assault victims. We cannot afford to waste any more time, activists must mobilize to kill the Fair Campus Act.