For 2 Senators, Campus Sexual Assault Solution Starts In Washington

AUDIE CORNISH, HOST:

And the two senators join us now. Senator McCaskill, welcome to the program. Senator Gillibrand, welcome.

SENATOR CLAIRE MCCASKILL: Thank you.

SENATOR KIRSTEN GILLIBRAND: Thank you.

CORNISH: I want to start with you Senator McCaskill because there are already a tangle of laws designed to address how schools deal with sexual assault - The Title IX Gender-Based Equal Protection Law, the 1990 Clery Act which was about reporting crime statistics. But as we've heard this proposal would add new penalties to schools who aren't in compliance. Doesn't the education department already have the ability to do that? They can already threaten a school's federal funding eligibility?

MCCASKILL: Well, one of the things we're trying to do with this legislation is untangle some of those regulations and rules to make it more simple and straightforward for schools - make definitions more clearly so that they know how to report the statistics. And also to hopefully focus them not so much on paperwork, but rather on the processes and support services for victims. And yes, they did have the ability to give a penalty but the penalty was unrealistic - it was removing all federal funding and most universities we're smart enough to know that was never going to happen. So things did not go quickly - we think the discretionary ability to give up to one percent fine of an operating budget will provide more impetus for these universities to get with it and to change their programs and processes so they are in compliance with these laws. We think it's another tool that in the long run will do a lot to help survivors.

CORNISH: Senator Gillibrand has this been an issue of poor enforcement and oversight, rather than lack of regulation?

GILLIBRAND: It's both. You know, having one in five women being raped during their college career is unacceptable. It shouldn't be part of the cost of a college education to endure sexual assault. And so what Senator McCaskill, I and others are doing is we are flipping the incentives, we are going to make it in the school's best interest to not only get this right but have the tools they need to end sexual assault on their campuses. They need to make sure they have people on campus that are trained, that understand this crime, that are trained in forensic interviewing so they can ask the right questions. We need to have memorandums of understanding with local law enforcement so they have more tools that if a survivor wants to prosecute a case and move it forward that they're already in collaboration and working together.

CORNISH: Senator McCaskill, your office issued a report earlier this year that said something like 22 percent of schools surveyed left the adjudication process to athletic departments where student athletes might be involved - there were also schools that have students involved in the adjudication and disciplinary process. Does your bill take this completely out of the hands of schools and these kind of campus justice programs if not, why?

MCCASKILL: Well, it does one important thing, it says there has to be one system for everyone. So the athletic department can no longer have a separate system for athletes versus a system that's on campus for the remainder of the students. That creates obvious improprieties and conflicts that are beyond inappropriate. But it does allow each university to devise its own system but with requirements of training, requirements of certain protections for the survivors and with, I think, more aggressive penalties that would be helpful to make sure universities get this right. And the people that are adjudicating these things now will have to have training. Right now you could have a student, sitting next to a professor, sitting next to a student, who have no clue about what the differences is between consensual and nonconsensual sexual assault and yet they are asking technical questions and asking questions frankly that are wildly inappropriate during this administrative process. So in the long run what Kirsten and I and all of our colleagues are looking for is a system where confidence comes to victims so they feel that they can come out of the shadows and report this to law enforcement so that these criminals that are doing this are held accountable for their crimes as opposed to this being, oh, well she was, you know, she had too much to drink or what she had on or where she went. We need to focus on the elements of the crime and making sure victims feel comfortable reporting that crime.

CORNISH: But Senator McCaskill the argument from critics here is that schools are not courts. They can't control evidence or have subpoena authority and that this is putting too much on them. That this really should just be about local law enforcement.

MCCASKILL: Well, keep in mind that what the schools can do does not mirror what law enforcement can do. In fact the most they can do is expel a student. So we're not talking about depriving someone of their liberty. We're talking about creating an environment on campus that is free of sexual harassment, sexual assault, sexual discrimination and other forms of discrimination. And this is a student conduct issue and they can't absolve themselves of responsibility just because it's hard.

CORNISH: Senator Gillibrand?

GILLIBRAND: And I'd like to add, yes, I think that's exactly right. First of all, schools are required to maintain a safe environment under Title IX. And that's what they're not getting right so we're giving them better tools to do this. We also changed some statute of limitations so we have more flexibility for when a survivor wants to come forward and feels ready to come forward. Oftentimes we've heard from law enforcement that if this happens more than once, there's more than one victim, the same set of facts, perhaps known the same perpetrator, it also gives survivors more confidence in the system to be able to go forward and demand justice.

CORNISH: Senator Gillibrand does this debate feel familiar to the debate over sexual assault in the military where you're trying to change a culture where the institution is built around taking care of things in-house.

GILLIBRAND: Well, the stories are the same. So for example, when I talked to Anna she says, not only was the crime itself brutal but she felt betrayed by the institution. And when you talk to a survivor from sexual assault or rape in the military it's the same thing. They'll say, I could survive the rape what I couldn't survive was the men and women in my unit or my commander turning their back on me. So it's not dissimilar when you hear the stories from survivors.

CORNISH: Senator McCaskill, it's been 20 years since the 1994 Violence Against Women Act was signed into law and that law beefed up resources for investigation and prosecution of crimes against women. Do you feel that there's been legitimate progress in the way society addresses this issue?

MCCASKILL: I can assure you there has been some progress because I began my legal career as an assistant prosecutor handling hundreds of sex crimes cases. And I remember men in my office saying we couldn't take a case to trial because the woman was on birth control. As if a woman being on birth control somehow made it that she couldn't be raped. So don't want to say that we haven't made progress. But this is a stubborn problem. It is painfully personal and private, it will always be underreported. There's nothing more difficult than confronting an incredible horrific experience and then worrying that people won't believe you or will try to make you out a liar when you talk about it. So that's why we've got to keep working at this both in the military and college campuses this has been really mishandled by the institutions and we're, both of us, are working very hard to make sure we correct those problems in both of these instances.

CORNISH: Senator Claire McCaskill, Democrat from Missouri and Senator Kirsten Gillibrand, Democrat from New York. Thank you so much for speaking with us.

GILLIBRAND: Thank you.

MCCASKILL: Thank you.

Copyright © 2014 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.