New Mexico Bill Would Force Colleges to Believe Accusers in Sexual Assault Proceedings
New Mexico is considering a bill that would threaten colleges with defunding if they don’t make assumptions that are favorable to accusers in sexual misconduct proceedings.
As the Obama administration’s Title IX guidance for sexual misconduct proceedings has been rescinded, it’s now time for the states to establish their own legislation concerning campus sexual misconduct.
House Bill 133 passed the House Health and Human Services Committee Friday, and will now be considered by the House Education Committee, according to the Los Alamos Daily Post.
The new bill would require public schools and public post-secondary educational institutions to adopt policies and procedures addressing affirmative consent and prevention of sexual assault, domestic violence, dating violence, and stalking.
It’s intended to give young people “the resources they need to make the best decisions for themselves and their bodies,” Democratic Rep. Elizabeth Thomson, who sponsored the bill, said. “This is a health issue, and we have a responsibility to teach consent as the basis for any sexual activity, so we can work together to prevent sexual assault. Only yes means yes.”
According to the 2017 New Mexico Youth Risk & Resilience Survey of New Mexico high school students, 8% reported being physically forced to have sexual intercourse, 9.9% reported experiencing sexual violence at least once in the past twelve months, and 11% experienced physical dating violence at least once in the past twelve months.
Even though media coverage portrays the legislation as just “another consent-oriented measure,” the Foundation for Individual Rights in Education (FIRE) claims that HB 133 functionally bans “impartiality” in sexual misconduct proceedings.
FIRE has criticized affirmative consent policies in the past because:
“Under most affirmative consent regimes, a student who engages in consensual sex may be found guilty of sexual assault simply by being unable to prove that he or she obtained unambiguous consent to every sexual activity throughout a sexual encounter.”
By requiring colleges that receive state funding to implement “complainant-centered policies and procedures” and use “trauma-informed” training for campus officials, the bill incentivizes proceedings that are inherently biased against accused students, Tyler Coward, legislative counsel to FIRE, wrote in a blog post last week.
Not only would “complainant-centered” procedures “almost certainly violate” Title IX, but the fairness of “trauma-informed” training is in serious dispute, he said.
Defining “harassment” through the state’s penal code is dangerous, Coward added, because if the definition is used “against speech in the educational setting,” it would preempt the specific Supreme Court standard devised for student-on-student harassment, known as Davis.
FIRE’s other problems with the bill track with the group’s longs-tanding opposition to affirmative-consent policies, which often prevent parties from being able to prove their received “continuous” consent or unambiguous consent at every “stage” in a sexual encounter.
Coward also scolds the bill for using the Obama administration’s mandated evidence standard, “preponderance,” which does not recognize the severity of potential consequences for an accused person. The “clear and convincing” evidence standard is better for sexual misconduct proceedings, and is explicitly recommended by the Supreme Court for “quasi-criminal” allegations that would result in more than the “mere loss of money.”
Harvard Law School Prof. Janet Halley has publicly described her school’s training as “100% aimed to convince [adjudication staff] to believe complainants, precisely when they seem unreliable and incoherent.” She continued, “Without disputing the importance of the insights included in this section of the training, one can ask: precisely what do they prove? Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted.”
Apparently, not everyone is comfortable with the new legislation…