Georgia’s controversial House Bill 51, which would require colleges and universities to report rapes (and other felonies) to the police whether or not the survivor consents, was unanimously tabled by the state Senate Judiciary Committee last Thursday to give the legislature more time to address concerns about the measure. The measure’s sponsor, Rep. Earl Ehrhart, R-Powder Springs, however, has told the Marietta Daily Journal that “he now hopes to attach it to another piece of legislation to be considered by the Senate” this week. They further report “Should his efforts be successful, a vote on his measure could come Tuesday or Thursday.”
“Rape takes an individual who is beautifully, powerfully unique and flattens her into something two-dimensional that brutal fantasy fashions into mute, pleasing paper dolls,” said Lisa Anderson, Executive Director of Atlanta Women for Equality. “That is precisely what HB 51’s mandatory reporting provision does to the extraordinary women I have the privilege of serving every day. We absolutely must put an end to this attempt to ratify rape culture.”
The other key provision of HB 51 would require colleges to afford students accused of sexual assault, and other felonies, with “due process” in institutional disciplinary proceedings. This provision is in response to steps taken by the Obama Administration beginning in 2011 to step-up enforcement of and attention to long-standing requirements under federal Title IX law that educational institutions act to address student-on-student sexual harassment and assault including taking disciplinary action against students found responsible for these violations.
Those requirements, however, are not at odds in anyway with ensuring accused students at state institutions receive “due process”. The U.S. Supreme Court established precedent on 14th Amendment due process protections in 1976’s Mathews v. Eldridge, 424 US 319, and since then courts have consistently applied them to state colleges and universities in student conduct proceedings. These basic protections include the right to notice of accusations against them, a right to be heard, and depending upon the circumstances procedural safeguards like the opportunity to be presented with evidence against them. No act of Congress, such as Title IX, or guidance documents concerning such a law can override these Constitutionally guaranteed protections.
The key is to balance the rights of the accused with those of the accuser. None of the iterations of House Bill 51, later versions of which provided greater protections for sexual assault survivors after intense lobbying from student activists, seem designed to find this balance, rather they appear to favor the rights of the accused at the expense of the rights and well-being of the survivor.
“To a rape victim in Georgia this will always symbolize someone who is accused being preferred over someone who was raped,” law student Grace Starling, herself a survivor and one of the organizers of Students Against House Bill 51, said in testimony before the Senate Judiciary Committee. “You cannot come at a piece of legislation one sided, and then say it is finally balanced so it is OK now.”
Rather than trying to rush this measure through this year, I encourage the legislature to come back next year and take a much more thorough and balanced look at these issues in the interests of protecting all students on Georgia’s campuses.