This Is the New Frontier in the Fight Against Campus Rape

A California bill would impose a mandatory minimum punishment of two years suspension for students found responsible for rape by colleges, signaling a new phase in the fight against campus sexual assault that even some reformers worry could go too far.

The legislation, part of a package of bills that would also change community college sexual assault policies and colleges’ reporting of rape data, passed overwhelmingly in the California Assembly on Wednesday. It next heads to the state Senate. If enacted, the bill would bring state law into the controversial and opaque inner workings of the college disciplinary boards that mete out punishment outside the criminal justice system.

California has been the most aggressive state when it comes to combating college sexual assault. In September, Gov. Jerry Brown signed a a “yes means yes” law requiring college disciplinary boards to use an “affirmative consent standard”—defined as “affirmative, conscious, and voluntary agreement” to engage in every level of sexual activity. But the new law would go further in dictating the actual punishments colleges hand down.

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“I think when there is more accountability, there will be more thought by perpetrators about whether they are going to endanger their education by engaging in this brutal behavior,” said the bill’s author, Democratic Assemblyman Das Williams, who hopes his legislation will inject accountability into college disciplinary boards that often act inconsistently and with little oversight.

Such boards and their standards vary across the country, but they are typically staffed by students or faculty members and are designed to decide guilt and assign punishments for students found responsible for violations as varied as academic cheating, drugs, and sexual violence. Those punishments can range from community service to expulsion. The boards operate independently from the criminal justice system and do not follow the same rules—most boards disallow students from using lawyers. When adjudicating sexual assault, the federal government has directed the boards to use the “preponderance of evidence” standard—a more than 50% chance that the perpetrator committed the crime—to determine guilt, which is a lower standard of evidence than required for a criminal conviction.

The role of college disciplinary boards has been at the center of the debate over how to handle the sexual assault problem. Because rape victims often don’t report the crime to police and because of low conviction rates, sexual assault survivor advocates have pushed for college disciplinary boards to take a stronger role to offer justice to victims where the criminal justice system has not. But stories of the boards letting men they have found responsible for rape get off with only minimal consequences have led to growing criticism.

“I’m not OK with there being no accountability for rape in this society,” Williams said. ” I would like to address it society-wide, but on campuses, we have a tool that could work better. My hope is that survivors and the people who are charged with their safety will avail themselves of those dismissal procedures. For most victims its their only chance at justice.”

Opponents of the bill see risk in imposing mandatory minimum punishments, especially by disciplinary bodies that do not operate like the criminal justice system. “Those committing sexual assault within our college campuses should be prosecuted to the fullest extent of the law by our judicial system, not at a campus disciplinary proceeding,” said Republican Assemblywoman Shannon Grove, one of the four lawmakers who voted against the bill. “College administrators should not be conducting criminal trials for serious crimes and our state legislature should not mandate punishments at these quasi- judicial hearings.”

A spokesperson for the University of California said it doesn’t have a formal position on the legislation.

Even among those who are in favor of stiff punishments from school disciplinary boards, some don’t believe it’s appropriate for the legislature to get involved.

“When states start telling schools what minimums and maximum punishments they can give for offenses, you start wondering where and when does that begin and end,” said W. Scott Lewis, a higher education legal consultant with The NCHERM Group, who specializes in sexual assault prevention on campus. Lewis also raised concerns about whether or not the state’s definition of “rape” would be consistent with the school’s conduct policies, a problem that could persist if other states try to adopt similar laws. The bill’s language requires the mandatory minimum punishment to kick in with “rape, forced sodomy, forced oral copulation, and rape by a foreign object.” But Lewis said some schools take a broader definition of what constitutes rape than the law might: “What do they mean by force? Does coercion count? Touching? Here you’ve got a state mandating a distinction for which can be broader term definition.”

Matt Kaiser, a Washington-based lawyer who often represents college students accused of sexual assault, agreed—especially in California, where the affirmative consent law ensnares a broader range of behavior. “Assault can mean touching somebody’s butt when making out and they didn’t want you too and didn’t say you could,” he said. “It’s squishy enough I don’t even know what the rules mean anymore.”