Mimesis Law
23 June 2017

Proposed Texas “Title IX” Laws Make a Bad Situation Worse

February 23, 2017 (Fault Lines) — Baylor University, according to the Dallas Morning News, has an egregious sexual assault problem worthy of codifying the Department of Education’s OCR “Dear Colleague” letters as actual law. If reports are to be believed, thirty-one football players committed fifty-two acts of sexual misconduct at the university over a three-year period.

Now, a Texas Senator wants to pass legislation curbing sexual misconduct in the Lone Star State. Like most laws of the sort, the solution runs afoul of H.L. Mencken’s famous adage, because it’s clear, simple, and wrong.

Senator Kirk Watson, along with his colleague Joan Huffman, is sponsoring SB 576, which would require university employees, faculty, and the “highest ranking member of a student organization” to report any alleged instances of sexual misconduct to the “institution’s chief executive officer” no later than forty-eight hours after the individual becomes aware of the incident. Failure to report within that time frame is a misdemeanor.

Another problematic area with SB 576 is the requirement reporting parties supply the victim’s name, address, and “any other pertinent information concerning the incident.” The only way the alleged victim’s personal information is kept confidential is if the victim requests it be kept confidential.

While this sounds great in theory, what happens when an administrator gets second-hand information about a drunken hookup at a frat party? The bill makes it clear there’s a forty-eight-hour time frame once any named party learns of alleged sexual misconduct.

That doesn’t give people a lot of time to seek out the potential sexual assault victim, tell her that they learned about a potentially horrific incident that person just went through, then ask whether they have permission to give the highest ranking campus official their personal information.

Fortunately, some Texans on both sides of the political aisle that are aware of the proposed legislation seem to agree that criminalizing failure to report within a certain time frame is a problem. It doesn’t matter if you’re for or against Title IX’s kangaroo courts, as these Texans agree this will negatively affect sexual assault reporting on college campuses.

Rep. Terry Canales, an Edinburg Democrat who wants schools to have better outreach programs to combat sexual violence, questioned whether threatening to punish students and staff would improve the problem.

“At first blush, it doesn’t seem constitutional,” Canales said Monday. “We want people to report without making criminals out of them.”

Patricia Davis, a Title IX attorney in Dallas, said Huffman’s bill won’t reverse this trend.

“It will create a chilling atmosphere on campus for everyone,” Davis said of the criminal penalties.

Don’t stop scratching your head just yet. In the immortal words of the legal scholar Billy Mays, “Wait, there’s more.” Senator Watson also proposed legislation that would make Texas an “affirmative consent” state. This would require participants in a sexual encounter to indicate at every stage they were okay with the sexual acts in question, either verbally or non-verbally.

As Reason’s Robby Soave notes, non-verbal cues usually satisfy the affirmative consent requirement. That means when universities are asked to investigate alleged lack of affirmative consent, “the standard always eventually requires college administrators to make intrusive judgment calls about which party was initiating what, whose unconscious signal should count, etc.”

It’s standards and laws like the ones Senator Watson suggests that create markets for smartphone apps college kids use to create contracts before they have sex.

If the problem is as bad as is suggested, and Baylor is in the midst of a campus sexual assault crisis, then action must be taken. But, that action should not involve legislating new standards of consent, or mandating criminal penalties for failing to report allegations of sexual misconduct. It should involve those in the criminal justice system actually doing their jobs.

Those who think they are victims of sexual assault should go to the police, not the campus Title IX coordinator. The cops should investigate and prosecutors should bring charges if the evidence warrants it. The accused should face his or her accuser in court, and guilt must be established beyond a reasonable doubt.

It’s absurd when people on both sides of the Title IX debate, those who think the “Dear Colleague” letter actually crafts a new law with different standards for sexual assault on college campuses and those who believe the opposite, finally agree on an issue. That both sides see Senator Watson’s proposed bills as flat-out wrong is amazing, and speaks strongly for the argument that maybe the folks who think Title IX mandates “preponderance of the evidence” as a burden of proof for sexual assault charges aren’t completely passionate in their convictions.

Senator Watson and his colleagues in the Texas Senate are arguably acting with good intentions as they craft legislation designed to rid college campuses of sexual assault problems. The time-honored saying when dealing with such issues, unfortunately, is “the road to hell is paved with good intentions.” If Watson’s bills pass, Texas college students will find themselves on a highway to hell.

2 Comments on this post.

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  • John
    27 February 2017 at 1:03 am - Reply

    I worked at a Texas higher educational institution. Their reporting requirements are already insane. You can get fired for not “immediately” reporting ANY kind of assault against a student*, employee or guest if you learn about it. The way the rule is written is so broad it does not specify place or time. If you learned a student got into a fight with his brother over the summer, technically you have to report under that rule.

    I do not think I would get fired for not reporting something like that, but there were no specified boundaries, or even what they mean by immediately, so I was not clear on what was a violation. I sent an email requesting clarification and they never replied. In contrast, all this was clearly specified for sexual harassment policy, ethics rules for what constitutes gifts v bribes, etc. which shows they know how to write clear rules but chose not to.

    Therefore, this law is already within Texas education tradition. They just added a criminal offense to you getting fired.

    *Who are nearly all adults

    • Chris Seaton
      27 February 2017 at 9:04 am - Reply

      One day, everything will be a felony. Texas just took it one step further.