A University of Virginia rape victim represented by the has filed a landmark civil rights action to stop a new federal law from undermining pending federal investigations of UVA’s mishandling of a sexual assault case on campus.
Two separate cases—each filed as a Petition for a Writ of Mandamus and Equitable Relief—were lodged with the United States District Court for the District of Columbia on Friday, February 21, 2014 and docketed today. The cases are:
Jane Doe v. United States Department of Health and Human Services and Kathleen Sebelius, Civil Action No. 14-0366
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Jane Doe v. United States Department of Education and Arne Duncan, Civil Action No. 14-0367
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The cases were filed in an effort to halt the Campus SaVE Act—a new federal law that will substantially weaken the rights of sexual assault victims on college campuses guaranteed under Title IX—which is scheduled to take effect on March 7.
UVA is under investigation by the Department of Education (DOE) and the Department of Health and Human Services (DHHS) for allegedly mishandling a sexual assault case on campus where a female student was drugged and raped by a male student. Allegations include that a UVA nurse falsified medical records and reported there were no injuries consistent with sexual assault despite multiple findings of significant injuries; and that UVA lost or destroyed photographs of the victim’s injuries.
UVA is the first university to be investigated by the Office for Civil Rights at DHHS for violating women’s civil rights in connection with their handling of sexual assault reports. Though most investigations at DOE and DHHS are resolved within 180 days, the victim’s cases have been pending for over 18 months. The victim asked the court to require DOE and DHHS to issue rulings prior to March 7 because both agencies declined to say whether they would apply SaVE’s watered down standards to her case.
“We’ve asked the court to issue an order protecting not only my client’s rights but also the rights of all women students from the harmful effects of the Campus SaVE Act,” said James R. Marsh, the New York based DC attorney who filed the lawsuits on behalf of the rape victim. “What happened to my client is all too common. When you’re talking about civil rights, you’re talking about the rights of all women on college campuses to be protected from violence. Campus SaVE undermines many of the critical protections previously granted to sexual assault victims. ”
One in four to one in five women is sexually assaulted during college in the United States, according to recent studies. Under federal civil rights laws, students are guaranteed the right to an education free from violence and harassment.
The suit alleges that SaVE undermines women’s civil rights in myriad ways including that it allows colleges and universities to require victims to prove their credibility under an exceedingly rigorous “beyond a reasonable doubt” standard. In contrast, civil rights laws mandate that victims meet a much lower “preponderance of the evidence” standard. Under SaVE, the higher burden of proof will only be allowed in cases involving violence against women, and will not be applied to cases involving violence against students based on other protected class categories such as race, disabilities and ethnicity. The victim alleges in her suit that it is unconstitutional to subject violence against women to weaker legal standards compared to violence based on these other categories.
Another objectionable provision in SaVE requires schools to apply state criminal law standards to violence against women cases on campus. Current law requires schools to apply more generous federal civil rights standards such that, for example, a sexual assault is proved so long as the conduct was “unwelcome.” Under SaVE, “unwelcomeness” will not be enough. The victim will have to prove that the conduct violated state criminal law, which in most states means the victim will have to prove both non-consent and that the assault involved the use of force. Because the more generous standard of “unwelcomeness” will continue to apply to cases involving violence that occurs on the basis of race, disabilities and ethnicity, the victim alleges SaVE violates women’s equal protection and due process rights.
“I am appalled by the way the Campus SaVE law weakens Title IX,” said Dr. Bernice Sandler, who is often referred to as the “godmother of Title IX” for her many years of work on the development, passage and implementation of Title IX. “SaVE places a greater burden of proof on the victim, while also subjecting women to disparate legal protections depending on where their college is located because SaVE incorporates state criminal law standards into assessments of federal civil rights violations. Title IX, as a federal law, was intended to protect the rights of all women equally, no matter where they go to college. I hope the federal court takes steps to protect women’s right to equality and safety in education.”
Many advocacy groups have expressed support for the funding provisions in SaVE that will go toward anti-violence training and education programs. Those provisions are not being challenged in the lawsuit.
UVA has not expelled a single student charged with sexual assault in more than 10 years. In the case currently under federal investigation, UVA’s own Sexual Misconduct Board ruled that the victim was “compelling” and “credible,” yet the Board cleared the accused of all charges, ruling the evidence was insufficient. UVA later granted the accused a teaching assistant position on campus.
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