Universities in Maryland must develop sexual assault disciplinary provisions that allow students access to an attorney, set parameters for sexual assault proceedings and restrict the use of mediation in resolving these disputes, under legislation passed by the Maryland General Assembly.
The new requirements come as U.S. Secretary Education Betsy DeVos considers rewriting federal campus sexual assault policies developed under President Barack Obama’s administration.
Stakeholders crafted the Maryland bill in an attempt to protect both sexual assault survivors and respondents to sexual assault claims by making on-campus proceedings more fair for all parties.
“It protects a number of things for students on both sides of these hearings,” said Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault. “It establishes fair process. What we were finding in litigating these cases is the schools sometimes just didn’t provide information, they didn’t provide access. It’s difficult to represent a student when they can’t find out when hearings are.”
Under the legislation, all universities in Maryland must adopt a revised sexual assault policy meeting certain parameters by Aug. 1, 2019. The bill passed both chambers unanimously and requires Gov. Larry Hogan’s approval before it becomes law.
One of the provisions allows students access to an attorney or advocate paid for by the Maryland Higher Education Commission. Maryland’s universities took issue with that policy, especially in early versions of the bill when it was more expansive.
Both public and private universities expressed concern that making it easier to access attorneys would turn the disciplinary process into a more adversarial proceeding. They also worried that expanding the role of attorneys could serve to intimidate parties or witnesses.
“Bringing attorneys into the process is not always in the best interests of either party and can significantly delay the process,” Tina Bjarekull, president of the Maryland Independent Colleges and Universities Association, said in a statement. “Based on the requirements of the original legislation, it would be almost impossible to resolve a sexual misconduct proceeding in a timely manner, and several provisions in the legislation were not consistent with best practices in conducting sexual misconduct proceedings.”
The state’s public universities expressed similar concerns.
“The (University System of Maryland) opposed this specific legislation because it will likely make responding to reports of sexual misconduct more, rather than less, difficult; increase, not reduce, response times; and transform an educational process designed to safeguard the civil rights of all students, faculty and staff into a judicial process that mirrors the criminal justice system,” Mike Lurie, a spokesman for the system, said in a statement.
Thanks to some changes to the bill, the private colleges have come to support it. Those changes include prohibiting the higher education commission from paying for attorneys in civil or criminal matters and no longer requiring attorneys, just permitting them.
Even outside of the disciplinary proceedings, attorneys can be helpful for students to help navigate the complaint process, Jordan said.
“I think that many students in this situation want advice about safety precautions and help with things like taking a temporary leave of absence and how that affects financial aid, moving dorm rooms and making sure they are not in the same room as an assailant,” she said.
The law also includes rules for what the disciplinary proceedings will look like. They must meet the same evidentiary standard as all other campus disciplinary hearings.
Another change would prohibit a student’s prior sexual history with anyone other than a party in the hearing from being considered, something known as a rape shield protection.
“I think what was so particularly troubling was that rape shield protections in the criminal context were established decades ago,” Jordan said. “It was very troubling to see colleges go so far back in time to a victim-blaming approach and to suggest that people who were sexually active might be lying about whether or not they were raped.”
The state guidelines come just months after federal actions have brought doubt to how sexual assault disciplinary proceedings will play out in the future in order to comply with federal Title IX.
Last September, the Department of Education issued guidance rescinding much of a previous guidance that the Department of Education had issued under the Obama administration.
Those guidelines preferred schools adopt a lower preponderance of the evidence standard for sexual assault cases. The new guidance allows schools to use either preponderance of the evidence or clear and convincing evidence, which carries a stronger burden of proof.
DeVos has said she believes the process became too unfair for students accused in sexual misconduct complaints.
Maryland’s legislation was a clear response to the changes DeVos has sought, Jordan said.
“It was an effort to make sure that Maryland was holding the line in protections,” she said. “I think it was a bill that many legislators felt responds to college sexual assault hearings in a way that’s needed.”
Despite opposition to the bill, the University System of Maryland said it remains committed to reducing sexual violence on campus and will look to implement the legislation, if approved by the governor.
“Going forward, the system is committed to doing everything possible to implement the new law in a way that continues to respond as a effectively as possible to the needs of those affected by sexual assault,” Lurie said in his statement.