Title IX

Texas Lawmaker Proposes Campus Rape Law So Crazy Even Title IX Defenders Are Skeptical

Baylor's problems are serious, but this isn't a great solution.



A member of the Texas legislature has proposed a series of bills aimed at curbing sexual assault on college campuses. Some are good, others are bad—and one is uniquely extreme.

If approved, they would undoubtedly move Texas to the front of the pack in terms of aggressive anti-rape measures. But they mount an additional challenge to due process on campus, and would even punish completely innocent students and faculty members who fail to notify administrators about a potential assault or act of harassment.

State Senator Kirk Watson, a Democrat, filed five campus rape bills earlier this week in response to serious issues at Baylor University, where 31 football players are accused of committing 52 acts of sexual misconduct over a three-year period, according to The Dallas Morning News. He's also a co-sponsor of another measure, put forth by State Senator Joan Huffman, a Republican, that would require members of campus to report sexual harassment and assault to the university president within 48 hours of learning about it.

Note that this bill, SB 576, doesn't just apply to victims—it applies to all university employees, as well as "the highest ranking member of a student organization" at any institution of higher learning in the state of Texas who becomes aware of sexual misconduct. It also requires the party with knowledge of sexual misconduct to report the victim's name, address, "and any other pertinent information concerning the incident." This does not apply if the victim wishes such information to remain secret, but let's keep in mind that the third party is only given 48 hours to report the incident. What if a staff member witnesses something he believes could constitute sexual harassment, doesn't know whether the victim wants to remain anonymous, and feels compelled by the law to report?

Failing to report would be a Class A misdemeanor: a $4,000 fine and up to a year in jail.

This approach is totally unfeasible, for a host of reasons. For one thing, "harassment" is an increasingly murky category of sexual misconduct on campus. Many universities, at the behest of the federal Education Department, define it very broadly—essentially, as any unwelcome conduct of a sexual nature, including jokes and inappropriate remarks that constitute protected expression.

The idea that victims and bystanders should be forced to respond to sexual misconduct in a particular way is actually vehemently opposed by many of the most strident anti-rape activists. It's one point of general agreement between due process civil libertarians and Title IX feminists. The Dallas Morning News quoted a Title IX lawyer as predicting that SB 576 "will create a chilling atmosphere on campus for everyone."

The other five bills contain a mix of good and bad provisions. One would establish something resembling a "Good Samaritan" law. Good Samaritan provisions grant immunity to people who are fearful of reporting a crime because they themselves could be subjected to some lesser prosecution: i.e., underage drinking. These provisions are a great way to encourage people to help others who are in need of police assistance.

Less noble is Watson's bill to make Texas an affirmative consent state. Affirmative consent requires participants in a sexual encounter to receive a "yes" before proceeding—which sounds good in theory but falls apart when scrutinized. Since nonverbal cues are often considered good enough to satisfy the affirmative consent test, the standard always eventually requires college administrators to make intrusive judgment calls about which party was initiating what, whose unconscious signal should count, etc.

The Dallas Morning News cites a dubious statistic in defense of these bills:

National surveys have proved the pervasiveness of sexual assault, harassment and stalking on college campuses. In one 2015 study conducted by the Association of American Universities, nearly 1 in 4 undergraduate women said they'd been sexually assaulted since enrolling in college. But experts consider these numbers artificially low, since up to half of victims at a campus like Texas A&M University also said they didn't turn in their attacker because they "felt ashamed, embarrassed or that it would be too emotionally difficult."

Well, other experts think the number of actual rapes on college campuses is much lower, since studies that arrive at the 1-in-5 statistic often define sexual misconduct in broad terms. (Read Reason's Elizabeth Nolan Brown for more on the subject.)

It is true, though, that Baylor has an egregious sexual misconduct problem unlike almost anything else in the country: the sheer volume of accusations is staggering. There's also evidence that everyone from Baylor's administration to its football coaches to the Waco police department was complicit in an effort to cover up the problem. In general, cops and courts should handle sex crimes, not professors and administrators—but this is one situation where the criminal justice system failed miserably.

A legislative effort to reform Texas's anemic approach to a sexual assault crisis at a particular campus would be wholly justified. But policymakers should concentrate on fixing whatever is broken within the police departments and court systems. Making colleges handle rape internally is a recipe for disaster (and lawsuits).