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Georgia lawmaker moves to shake up college rape investigations

Posted at 5:42 PM, Feb 02, 2017
(CNN) -- The first person Grace Starling told about her rape was her professor. She didn't intend for it to be that way, but trauma pushes people in unexpected directions.
She was a 19-year-old sophomore at Agnes Scott College in Decatur, Georgia, and she had just botched her first presentation of the spring 2014 semester. A high-achieving, straight-A student, she couldn't let it go without a conversation.
When Starling went to her professor's office she says she suddenly burst into tears.
"This weekend I was raped, and I don't know what to do," she told her professor.
By the end of the conversation, Starling had decided to report the incident to law enforcement to pursue criminal charges. A few days later, she reported the incident to the school the young man attended to seek interim disciplinary measures.
Under a proposed law in Georgia, the decision would not have been left up to her.
What is HB 51?
Lawmakers heard testimony from Starling and others on Wednesday in consideration of a bill that proposes to change how sexual assaults on college campuses are investigated.
Under current state and federal law, students can choose whether to report sexual misconduct to law enforcement or their school or both. Or, they don't have to report at all. Nothing in current law requires university employees to report conversations with students about sexual misconduct to authorities without their say-so.
HB 51 could change that.
The bill requires certain school employees to report possible felonies, such as sexual assault allegations, to law enforcement. The proposal effectively sidesteps university hearings, sometimes called Title IX hearings after the federal civil rights law that mandates them. Under the proposed law, a school disciplinary hearing can only take place if a criminal investigation has been launched, a key departure from how things currently work.
The proposal also prevents interim disciplinary measures from taking effect until a criminal investigation has been launched, another contrast to how administrative hearings currently operate.
The bill is the latest to address the critique that schools should "be in the business of educating, not investigating sexual assaults," as HB 51's Republican sponsor, Rep. Earl Ehrhart, put it.
It's a position that clashes with state and federal law as well as best practices for a trauma-centered approach to helping sexual assault survivors. The school process is far from perfect; that much is clear from the ever-growing pile of lawsuits against schools over their handling of sexual misconduct cases. But for many it's preferable to a lengthy, invasive criminal inquiry for everyone involved.
As someone who pursued both paths, Starling, 23, said the administrative process was kinder and more responsive to her needs than the criminal justice system. As a result of the experience, she decided to forgo art history to pursue a law degree at Georgia State University, where she's in her first year.
At Wednesday's hearing, she addressed the lawmakers from a seat at the edge of the table.
"While I ultimately reported my assault to the police a day later, I can assure you that if I was not able to decide this for myself, I would not be sitting in front of you right now," Starling said.
An example of federal overreach?
The bill bears traces of critiques of the Obama administration's aggressive approach to campus sexual assault. Since 2011, the US Department of Education has directed colleges to adopt tougher approaches to handling sexual misconduct allegations or face losing billions in financial aid. It began with a "Dear Colleague" letter to colleges from the department's Office for Civil Rights reminding them of their duty under the federal civil rights law Title IX to protect students from gender-based discrimination, including sexual assault.
The approach has not sat well with defense lawyers and other critics, who see it as federal overreach that encroaches on due process rights of the accused, by giving investigative powers to school administrators. One of those people is Ehrhart, chairman of the legislative committee that allocates funding to Georgia's colleges. He sued the Department of Education in 2016 over the federal guidance.
A businessman from Cobb County, home of the tea party and conservative firebrand Newt Gingrich, Ehrhart made no secret of his intentions Wednesday at the standing-room only hearing, so crowded it had to turn people away.
"HB 51 is going to change the rules," he said from a seat behind a table. "There will be no separate Title IX cases. All felonies will be treated the same."
He said he expects the election of President Donald Trump will affect the rules.
"It's not going to stand up, especially not now," he said in an interview before the hearing in his office at the Capitol. "I think you have a different administration in Washington that's going to look askance at extra-legal guidance and opinion."
The signs are there. On Thursday, evangelical leader Jerry Falwell Jr. declared his intention as head of an education task force for Trump to push back against regulations coming out of the Education Department, especially those that apply to colleges and universities. "Title IX is an area where he feels there is over-regulation," a spokesmen told CNN, adding that Falwell feels campus sexual assault investigations are "better left to police, attorneys, judges."
Losing the choice to decide
As Ehrhart made his case, the contrast between the audience of college students and activists and the middle-aged panel of six white men, one black man and one black woman could not have been more stark. Many in the audience had signed an opposing petition, which has 1,300 signatures. Throughout the hearing, they sighed heavily and rolled their eyes at the lawmakers' questions and comments.
Though still in its early stages, the proposal that made it out of the subcommittee Wednesday worries those in the audience for numerous reasons. Above all, they fear survivors will lose the power to decide their fate.
The bill would require university employees and staff to report possible felonies such as sexual assault. The bill excludes privileged conversations under Georgia law, including lawyers and several types of licensed mental health care professionals. That does not include conversations with professors, coaches, resident advisers or deans. Nor does the exclusion cover the unlicensed counselors, therapists and volunteers who often staff student centers and health clinics, the first places students tend to go to in crisis.
Reporting is already difficult because of the tangled web of emotions that sexual assault survivors face, survivor Jessica Caldas told the committee. It was enough to keep her from reporting her rape.
"When one person assaults another they are taking away their agency and attacking them at their core. It is ultimately dehumanizing, a refusal to accept the humanity of the person being assaulted," Caldas said. "This dehumanization, along with the stigmas of sexual assault, breed within the victim doubt, shame, fear and guilt."
The decision to report often starts with a conversation, be it with a friend, a professor or a counselor at the student center. As it's written now, HB 51 would require survivors, in a moment of extreme crisis, to seek out a person covered by the privileged communication exclusion to ensure the confidante would not be required to report.
Caldas said limiting whom people can talk to in a moment of crisis could have the opposite effect of silencing them.
"Victims know that the criminal justice system will put them through a lengthy and invasive process, for which many are not immediately prepared while dealing with the trauma of their assault," she said. "If they know they will be sent to the police, victims are less likely to report at all."
The bill could also forbid interim disciplinary measures until a criminal investigation has been launched, another key departure from current practice.
Title IX allows schools to provide interim measures to ensure the safety and well-being of the survivor and the school community. Such measures could include suspension or a dorm change so the two parties can avoid contact. Interim measures are a hallmark of Title IX; survivors say they need them, while others call them a clear violation of constitutional rights.
For Starling, such measures helped her make it through school, she said. By the time the semester was over, the young man she had accused of rape had been suspended, she said. Her school gave her the time off she needed to cooperate with the criminal investigation, adjusting assignments, and provided her with counseling.
Such accommodations could only come from the school, not police, she said.
Cases rarely end in convictions
Starling's situation also reflects how rare it is for such cases to end in a criminal conviction. After more than two years of interrogations and meetings with prosecutors, the Fulton County District Attorney's office dropped her case.
"These cases with drugs and alcohol are very difficult for us to reach conclusions," Fulton County District Attorney Paul Howard said at the time.
A December 2014 Atlanta Journal-Constitution analysis found that campus police at nine of Georgia's largest universities have logged 152 allegations of rapes and sodomies since 2010. Not one resulted in criminal prosecution. A separate AJC investigation of campus disciplinary hearings found that over five years, Georgia's five largest public universities processed 43 sexual misconduct complaints and held the accused responsible about half the time, resulting in various sanctions, from probation to expulsion.
When someone is wrongly accused
The disparity is what concerns critics of the so-called "campus tribunals," including Ehrhart. He said he was moved to act in part by the investigations and calls from parents whose sons had been caught up in the system, with life-altering consequences.
One of those mothers testified at Wednesday's hearing. CNN is not naming her to protect the identity of her son, who was not charged with a crime.
She described her son's ordeal, which began after a night of drinking with friends. Her son invited a drunk female acquaintance back to his room rather than leave her alone at a party, the mother said. A friend later came for her and brought her home. The next day she texted him, "I'm sorry I was bothering you. Thanks for being such a great guy," and he thought that was the end of it, the woman told the committee.
Instead, it was just the beginning of a harrowing ordeal that ended with a school finding that he was responsible for sexual misconduct. A friend of the young woman reported him and the allegations went to the Title IX disciplinary department that investigates such complaints. The mother said the head of the department pushed the case based on scant hearsay testimony in a haphazard series of interviews and hearings, some of which he was not privy to. The family appealed the finding and upon review the case was dropped, but the school never apologized, she noted.
"Had he been given due process this never would have happened," the mother said. "Those with power must not be able to wield it recklessly."
Can we have it both ways?
Because of the confidential nature of Title IX hearings there's no way to know how rare or common such miscarriages of justice are. Therein lies the balance the lawmakers are attempting to strike between the constitutional rights of the accused and the duty to protect survivors after a traumatic event.
In other words, "How can we have both?" as one committee member at Wednesday's hearing put it. "Sometimes, you can't have it both ways."
Not necessarily so, said Helen Robinson, director of advocacy at the YWCA of Greater Atlanta. That's why the disciplinary process exists as a separate track from the criminal justice system, to provide different measures of justice for different purposes.
The sanctions that result from administrative process are not intended to be criminal punishments, she said. They are intended to serve and protect the school community, especially the two parties involved. Law enforcement cannot suspend a student accused of sexual misconduct, she said. The district attorney cannot give a grieving student a homework extension or provide counseling.
Even if you make it clear to students that there are certain people they can turn to in times of crisis for privileged conversations, you cannot predict how they will act, she said. But it's reasonable to believe that in the face of such obstacles, they may not act at all.
"Sexual assault has a unique impact on victims," she said. "It cannot be compared to other crimes."
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