Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

["S. Daniel Carter" <>]

Legislation was introduced into the Georgia state Senate in February that I
believe could have unintended consequences on how colleges and universities
respond to complaints of sexual assault. Senate Bill 538 "The Campus Sexual
Assault Information Act" introduced by Sen. Preston Smith largely duplicates
the existing federal Campus Sexual Assault Victims' Bill of Rights found in
the Clery Act, but contains several important differences. For information
about the bill please see...

http://www.legis.state.ga.us/legis/2003_04/sum/sb538.htm

SB 538 would limit the institutional sexual assault disciplinary policies
that schools must adopt to only those offenses occurring on campus, leaving
out incidents occurring off campus. Currently the University of Georgia, and
other schools, can adjudicate off campus incidents such as a
student-on-student rape in an off campus apartment.

This bill might limit that ability, and at a minimum would not afford those
victims the protections that the victims of on campus assaults would have.
The federal Clery Act affords victims certain enumerated rights regardless
of the location of the assault which could lead to confusion if the Georgia
bill is adopted.

SB 538 also appears to require victims to report their assault to the
authorities. SB 538 takes language in the Clery Act that uses "should"
report and replaces it with "must" report.

A more complete review is below for your reference. I'd also appreciate the
list's input on this bill, which was apparently based on a law passed in
South Carolina in 2002. I look forward to hearing from you.

********************************
S. Daniel Carter
Senior Vice President
Security On Campus, Inc.
http://www.securityoncampus.org/
e-mail:

SB 538 COVERS ON CAMPUS OFFENSES ONLY

Most notably the proposed legislation more narrowly defines those sex
offenses which would be covered. The Clery Act's sexual assault policies
deal with "an alleged sex offense" regardless of where it occurs so long as
it is being dealt with in a "campus disciplinary action" while SB 538 is
limited to only "alleged campus sexual assault" offenses.

This difference is significant. The Clery Act mandated policies apply to sex
offenses regardless of where they happen, so long as the institution
maintains disciplinary jurisdiction over that location. SB 538 would limit
school policies to only those areas defined as being on-campus (campus,
recognized student organization housing, or other areas controlled by the
school but owned by a 3rd party).

The University of Georgia, for example, maintains jurisdiction over "any
behavior, on or off University premises, which adversely affects the
University community or the pursuit of its objectives." So if one student is
accused of raping another in an off campus apartment then UGA could initiate
action. The rights accorded victims under SB 538, however, would not apply
in such cases. Institutions would still be subject to the Clery Act and thus
need to afford rights to all victims though.

It is also possible that SB 538 if adopted could be construed to require
institutions to limit their sexual assault policies to only those alleged
offenses occurring in areas defined as part of the campus. Or to adopt
separate policies one for on campus, and another for off.

Further, complications could arise if institutions were to adopt policies
that comply with SB 538, but not the Clery Act in scope. An institution
complying with the state law, but exempting off campus assaults from these
policies for example, could run afoul of federal law and be found in
violation with fines up to $27,500 per incidence of non-compliance.

SB 538 REQUIRES VICTIMS TO REPORT

Language in SB 538 concerning the reporting by victims of their assault
differs significantly. While the Clery Act requires a policy statement about
"to whom the alleged offense should be reported" SB 538 would require
adoption of a policy about "the authorities to whom the alleged offense must
be reported." SB 538 replaces the word "should" used in the Clery Act with
"must" giving this policy a potentially much different meaning.

As I read this language in SB 538 institutions could be forced to adopt a
policy that would mandate that victims who fail to report an assault be
subject to student judicial action themselves as they "must" report. As a
practical matter I'm not sure how such a code could even be enforced, but
such a heavy-handed approach could still be very counterproductive.

OTHER DIFFERENCES

SB 538 makes specific reference to allowing both the accuser and accused to
bring legal counsel, if allowed by the school, to any hearing. While the
Clery Act doesn't refer to legal counsel, it already makes it clear that
both parties have to have the "same" opportunity to have others present. So
if the accused can bring legal counsel, so can the victim, and vice versa.

Many of the other provisions vary wording from the Clery Act slightly. On
initial review none of these differences appear significant.

PRIVATE RIGHT OF ACTION

SB 538 would "not expand or reduce a private right of action" while the
Clery Act's existing sexual assault policies already disallow "a private
right of action... to enforce the provisions of this paragraph." Normally
violations of a state law could be construed as a breach of duty, and thus
create grounds for a civil lawsuit. So victims still couldn't sue if their
rights afforded by SB 538 were violated.

DISTRIBUTION OF POLICY

SB 538 requires that the sexual assault policy be distributed to students
and staff in at least one publication made widely available on campus. The
Clery Act already requires that each student and employee either receive an
annual security report containing these policies, or receive direct notice
of a web site URL where the report can be accessed. Accordingly this
requirement seems somewhat duplicative.

Requiring disclosure to a student when they make a report of a sexual
assault is not in the Clery Act though and does seem helpful.

STUDENT JUDICIAL POLICIES

SB 538 would require general, but not one to one, disclosure to students of
a description of student judicial policies. Nothing of this nature is found
in the Clery Act. I also believe that most, if not all, schools already do
so.

MODEL POLICY

SB 538 requires the state higher education boards to develop and distribute
a model sexual assault policies that is consistent with the bill's other
requirements. I read this requirement to mandate that the boards work
together to develop a single model policy for use statewide. This could
discourage unique, but appropriate policies at each school.

CAMPUS MEGAN'S LAW DISCLOSURES

SB 538 would add a totally redundant provision concerning registered sex
offenders on campus. The Clery Act already requires that institutions
disclose in their annual security report where campus specific information
about registered sex offenders can be accessed by the public. It is
possible, however, that by adding this provision to state law that
institutions could be sued if failing to provide this information led to an
assault. Presently schools can not be sued for failing to provide this
referral.

What states need to do to comply with the federal campus sex offender
registration requirements is to collect and disseminate this information
through their existing registration programs. Duplicating this Clery Act
requirement will not bring Georgia into compliance.