To the Members of the United States Congress:
The proposed Campus Sexual Violence Elimination Act (SaVE Act) (S.834) should be rejected unless it is amended to adequately protect the interests of the presumptively innocent who are accused of sexual assault and related offenses.
Although as a scientific matter, the frequency of false complaints of sexual assault and similar offenses to police or institutional authorities varies widely depending on the study and is impossible to state with precision, false reporting of such offenses is a significant problem to a distinct segment of the population.
The goal of holding sexual offenders accountable for their misconduct is one that is universally shared by all civilized people. However, the SaVE Act, in its present form, should be rejected because it unduly enhances the risk of holding innocent persons responsible for such offenses in furtherance of the objective to hold true offenders accountable.
The proposed SaVE Act should be amended in the following particulars:
(1) Eliminate Requirement to Apply Preponderance of Evidence Standard:
The proposed SaVE Act would impose requirements on proceedings for institutional disciplinary action in cases of alleged domestic violence, dating violence, sexual assault, or stalking. Among other things, it would require that hearings regarding such alleged offenses "use the preponderance of the evidence standard."
It is a hallmark of the American experience and a universally accepted tenet of the common law tradition that it is better that persons responsible for offenses not be held accountable than to hold innocent persons responsible for wrongs they did not commit.
Many institutions that would be subject to the proposed SaVE Act currently apply a standard of proof higher than “preponderance of the evidence” in such hearings. These institutions have made a policy determination that to hold someone accountable for an alleged serious wrong that is typically subject to conflicting evidence where there is only a slight probability that he or she actually committed it, as the proposed SaVE Act would require, unjustly enhances the risk of holding the innocent responsible for wrongs they did not commit.
A student’s interest in obtaining a college degree, with all it entails, is of such weight and gravity, and the damage attendant to a determination that a student committed sexual assault or a similar offense is often so severe, that institutions of higher learning should have the right to impose a standard of proof greater than a mere “preponderance of the evidence.”
(2) Hearing Process Must Respect Rights of Presumptively Innocent:
The proposed SaVE Act would require that disciplinary proceedings for alleged sex offenses "be conducted by officials who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability."
The proposed act fails to include any requirement that officials be trained to respect the critical interests of the presumptively innocent in the investigative and hearing processes.
At a minimum, the proposed act should contain a requirement that officials receive annual training to conduct such investigations and hearings with impartiality, fairness, and fidelity to the evidence, and free from even the appearance of bias.
The proposed act should also provide that the institution has the duty to advise the accused of his right to consult with counsel and to have counsel represent him in all phases of the proceeding, including the disciplinary hearing.
The integrity of the hearing process, and fundamental notions of fairness to the presumptively innocent, demand nothing less.
We, members of the American community concerned about the rights and dignity of those who have been wrongly accused of sexual assault and related offenses, call upon the members of the United States Congress to reject the proposed SaVE Act (S.834) unless it is changed to provide critical protections for the presumptively innocent by: (1) eliminating any requirement that institutions utilize the "preponderance of the evidence" standard; and (2) requiring that officials who investigate and conduct hearings into sexual assault and related offenses be trained to honor the critical rights of the presumptively innocent in the manner spelled out in this petition.