Sen. Jackson’s Campus Rape Bill Moving Through Legislature Despite Legal Opposition

“Schools in California lack clear guidance regarding the rights California students are entitled to during a school misconduct investigation and proceeding involving an underlying complaint of gender-based discrimination, including sexual harassment and/or violence,” says Sen. Hannah Beth Jackson (D-Santa Barbara). 

Jackson has authored Senate Bill 493 which would require California universities and colleges to adopt rules and procedures for the prevention of sexual harassment, and adopt and post on their Web sites the grievance procedures to resolve complaints of sexual harassment. 

California Globe has followed this bill.

Jackson’s bill was heard Tuesday in the Assembly Higher Education Committee to a packed room.

According to Sen. Jackson, 1 in 5 female students by their fourth year of college have experienced sexual assault.  Jackson said less than 10 percent of victims of sexual assault reported the incident to police or school officials.

She said because sexual assault and violence is pervasive, her bill will ensure continued equal opportunity in California’s education system, for women as well as men, under Title lX.

Jackson’s statistics come from the 2016 Campus Climate Validation Study Survey initiated by the Obama administration, following a 2014 White House Task Force to Protect Students From Sexual Assault. 

Also in August 2014, “the Office on Violence Against Women (OVW) funded the Bureau of Justice Statistics (BJS), within the U.S. Department of Justice, to develop and test a pilot campus climate survey that could be implemented by schools or researchers, and used to address key Task Force goals and issues related to the measurement of rape and sexual assault in self-report surveys,” the Campus Climate survey reported.

Based on this, Jackson said there is an epidemic of sexual harassment and assault in colleges and universities “that calls for radical change.”

“I’m concerned by dismantling of Title 9 by a hostile administration,” Jackson said.  This measure codifies additional procedures – including adding sexual violence to sexual education.” 

Jackson said “Adopting grievance procedures,” was necessary, as well as “requiring educational institutions to take immediate action.”

Sen. Jackson had Emilia Wagner testify at the hearing, a compelling student who experienced rape by football player at her college. Wagner said her school was a small campus, which made reporting the rape difficult as she and the males student were both student athletes. Wagner said she told her coach, but she was terrified to report the rape because of how small the school was, and how close the athletic community was. 

She said the school paid no mind to how they handled it, and extended the process, sent her long complicated documents, over and over, drawing out the process unnecessarily. She had to explain her situation to all of her professors over and over again, as the school did not properly represent her position.

She said she was forced to settle by the school, rather than the school adjudicating the assault. Her situation and story was painful and awful. 

However, the other side to the colleges handling these situations is Cynthia Garrett, co-president of Families Advocating for Campus Equality (FACE), and a practicing attorney. Garrett has served on an American Bar Association task force which developed recommended Title IX procedures, and serves as a liaison for two sexual misconduct projects with the American Law Institute. 

Previously, Families Advocating for Campus Equality submitted opposition to SB 493 hoping to work with Senator Jackson to create a better, more equitable bill. “Unfortunately, despite having submitted our Opposition sufficiently in advance of the April 3rd hearing – as instructed on SB 493’s website – distributed the Opposition in person throughout the Senate on March 20th, and emailed it on March 31st to every senator in the California legislature, we were astonished and dismayed to learn that the Senate Education committee’s bill analysis stated SB 493 had received no opposition,” Garrett said in April.

Garrett said in Tuesday’s hearing they “generally support the bill” but still have some very serious concerns based on the 1,5oo families they have represented. 

Garrett and Kim Jones, the mother of a son falsely accused of campus sexual assault, were never told of the allegations by the school. She said her son was not allowed to walk for graduation, despite never having had a hearing over the allegations lodged against him. She said he was found responsible by the school for sexual assault “over a kiss,” and was expelled. Jones said they finally had to file a lawsuit in court, rather than accept the campus process, and they won. “This needs to be fair and unbiased for ALL parties,” Jones said.

Garrett said these are incorrectly considered “trauma informed hearings,” on college campuses. She said victims should not be grilled, but the problem is that schools are misapplying and using the “trauma informed hearings” incorrectly for the purpose of excluding evidence. Garrett gave the example of two students in a relationship, where a sexual assault ostensibly occurred half way through the relationship, but the students continued in relationship for a few more months, and then the assault claim took place. It’s messy and complicated at that point, but Garrett said the ongoing relationship is not considered in a campus hearing.

The bill was amended to add a cross examination element through a “neutral” investigator. However, Garrett said, “There is no neutral school official, because their roll is to protect the victim.” The bill needs to add an outside “neutral” investigator, Garrett said.

Cynthia Garrett has stressed that University disciplinary panels are not made up of trained judges, police officers, legal mediators or attorneys, and instead are made up of university employees. They have an interest in protecting the university, and not the rights of the accused or the victim.

“Perhaps most concerning,” Garrett said in April, “is that Senator Jackson’s bill ignores multiple California appellate and superior courts that recently have found both public and private California schools’ Title IX procedures ‘deeply flawed,’ that they create ‘an unacceptable risk of bias,’ have completely ‘obliterated due process,’ operate like a ‘kangaroo court,’ have even ‘failed the alleged victim,’ and ‘improperly permitted’ evaluations based on the same ‘trauma-informed approach’ Senator Jackson’s SB-493 seeks to have schools implement.” 

“In fact, late last year California’s Second District Court of Appeal criticized officials at UC Santa Barbara, located in Senator Jackson’s own district, finding it: “ironic that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy,” Garrett added.

At the hearing, Jackson’s bill had support from:

Many UC Berkeley alumni

UC Riverside students

California Lutheran University students

Access Women’s Health Justice

Cal Poly alumni

Santa Cruz alumni

UC Santa Barbara alumni

UCB student association

NARAL

UC Davis alumni

AAUW

Northridge alumni

Commission on status of women and girls

UC Hastings students

Notably, the California State University said they had concerns with bill, which should be addressed in the Judiciary Committee.