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‘Emergency measure’ that’s sitting untouched in the Senate

Public colleges in Ohio would have to develop sexual-misconduct policies “with the goal of enhancing due process,” under a bill that is continuing through the Legislature.

It’s not clear what practical effect the Respect Your Date Act would have on the treatment of accused students, a law professor told The College Fix, but a student government official insisted it would be positive.

The bill would designate April as “Respect Your Date Month,” in order to “increase public awareness of dating violence, domestic violence, sexual assault, stalking, and rape on college campuses.”

It would also require each “state institution of higher education” to adopt a policy regarding these types of sexual-misconduct incidents on campus.

The bill declares itself an “emergency measure necessary for the immediate preservation of the public peace, health, and safety.” It will take effect immediately once signed into law “to ensure safety on college campuses across the state for the upcoming academic year.”

In spite of this sense of urgency, the Senate has not acted on the bill (HB-240) since receiving it from the House, where it was approved unanimously a month ago. The House version had more than 30 cosponsors of both parties.

One of the college students that testified in favor of the bill, Jennifer Schoewe (below), was involved in a high-profile Title IX investigation at the University of Cincinnati.

The university’s refusal to investigate the accused student’s sexual-misconduct allegations against Schoewe is going back to court, following an appeals court ruling on gender bias in Title IX cases.

MORE: Bill to enshrine Obama’s Title IX rules fails in Colo.

Due process needed to avoid ‘environment of certain assumptions’

The bill requires public colleges to include reporting procedures and investigative plans in their policies. They also must “describe the consequences for committing an incident … including the institutional disciplinary proceedings and the possible penalties that may be imposed,” and keep records of all reports it receives.

Covered colleges must post copies of the policies “in multiple, prominent locations across campus and in a prominent location on the institution’s web site,” at least during April. They also must distribute copies during student orientation “and at other appropriate events.”

All state institutions will use the same definitions of terms such as “dating violence” and “sexual assault,” taken from the federal Violence Against Women Act, and “rape” as defined in Ohio law. They will also use the military’s definition of “consent” for its own members.

But the bill lets public colleges “expand upon” the federal, state and military definitions “to address additional situations and incidents” related to their sexual-misconduct policies.

The section on due process is not spelled out in detail. It simply says the college policies must be “developed with the goal of enhancing due process” for the covered incidents, “and to better define the protocols provided for” under the federal Clery Act and Title IX.

State Rep. John Barnes (left), the bill’s primary sponsor, told The Fix that he sought feedback and advice from student advocates in Ohio in crafting HB-240, which was named after the Aretha Franklin song “Respect.”

“We observed this is a national problem” that also affects the campus environment in Ohio, Barnes said in a phone interview.

“It was important for us in a proactive way to address policy that lacked clarity on the issue,” he said. “While you’re here [at college] for an education, a good time and new experiences, we want to make sure everyone has the same experience.”

The bill mentions due process to show respect for both the accuser and accused by laying out a consistent and clear process for universities to follow, Barnes said: “We want to make sure this is not something that could potentially create an environment of certain assumptions.”

MORE: Mass. lawmakers impose ‘junk science’ campus rape training

One of the student advocates that assisted Barnes is Daniel Palmer, incoming student body president at Wright State University.

Palmer noted on Twitter that he had testified in favor of the bill, which he said would “mandate interactive education for all incoming freshman to reduce sexually motivated crimes on college campuses.”

His chief of staff, Ivan Mallett, told The Fix that the bill was one element of the student government’s lobbying efforts “at the local, state and even national level,” which only started in the academic year that just concluded.

“It seemed like a long shot at first but what we’ve come to realize is that legislators are very receptive to the input of students,” he wrote in an email. Student leaders “started taking weekly trips up” to the Capitol and talked with representatives in the House Higher Education and Workforce Development Committee as well as professional lobbyists from the Ohio Inter-University Council.

Student leaders “thought that [HB-240] was a good start,” Mallett said. Then they found “empirical data that showed that an interactive online course about a universities [sic] policies towards sexual harassment and assault, to include active bystander intervention and reporting methods for victims, is able to significantly reduce the frequency of these crimes being committed on college campuses.”

MORE: States snub Trump changes, embrace Obama Title IX rules

https://twitter.com/PrezPalmer/status/1015033007814692864

Innocent until proven guilty is ‘often times ignored’ on campus

None of the three versions of the bill posted on its legislative page, including the version passed by the House, mentions interactive education or any training requirement for students.

Asked Monday to explain where the bill mentions anything like interactive education, Palmer pointed The Fix to the bill’s “fiscal note.” It says the bill requires public colleges to “provide an interactive session on the content of the policy to all entering students during new student orientation. The education session may be delivered as an interactive online class.”

“For some reason, the legislative analysis and bill on the website are incorrect,” Palmer wrote in a tweet.

The committee activity page shows that Palmer submitted a letter to the higher education committee for its April 11 hearing, as both president-elect of the WSU student government and executive director of the Ohio Student Government Association, that expresses his “full support” for replacing “the hardcopy provision” in the bill with “an interactive educational training” for all incoming students.

In his testimony at the higher education committee’s second hearing on the bill in October, Palmer said WSU was “exploring avenues for a required online course for incoming students” that would put a hold on registration until students had completed it.

“Students will know where to report such incidents through this educational course,” he wrote: “Currently, many students may not be fully aware of the ways to report and seek help from on campus services.”

Mallett told The Fix the due process provision is “reiterating, as many times laws do, that all victims and even perpetrators are equal in the eyes of the law, and that we have a justice system built on the proposition that a suspect is innocent until proven guilty, a fact that is often times ignored in cases of sexual harassment and assault on college campuses.”

The bill strengthens the federal Clery Act and Title IX and “protects the rights of the victims and suspects of these crimes, ensuring that young people’s lives aren’t ruined by false accusations, and that victims don’t have to endure the torment of seeing their attacker on a daily basis,” he said.

Jonathan Adler, a professor at the Case Western Reserve University School of Law, does not feel the bill provides anything tangible for students regarding due process.

“There are problems with the disciplinary systems on many college campuses, particularly with regard to due process for the accused, but I am not sure that this legislation would do much to address that,” he wrote in an email to The Fix. Adler also noted it doesn’t apply to private universities such as his.

‘Unbiased’ Title IX panel but ‘UC did not do right by me’

When Jennifer Schoewe testified in favor of the bill at the October hearing, she told lawmakers her story of being raped by “Tyler,” which she had first shared publicly in a Cincinnati Enquirer feature nine months earlier (below).

“I do not know how much alcohol I consumed or if there had been something slipped into my drink,” but she lost her memories for 12 hours, according to her testimony. Schoewe shared her anger at how long it took the University of Cincinnati to grant her request for an interim suspension against the accused student.

She called the Title IX panel that heard her case “unbiased” but said that even when it found “my rapist” guilty and expelled him, “I do not think it was for the right reasons”:

I am the posterchild [sic] for systems that fail victims of sexual violence, and it is rare to find a victim willing to endure endlessly reliving arguably the worst and most humiliating pain in the world to complete strangers who will dissect her entire life to determine if they believe her. … UC did not do right by me, but if I can spare one life from enduring what I endured and feeling what I still feel every day, then this will all be worth it.

MORE: Due process advocates cheer Georgia protections for students

Three months later, Schoewe’s allegations against Tyler Gischel took a hit when a federal judge refused to dismiss Gischel’s lawsuit against the university, including his claims for “erroneous outcome,” procedural due process violations and “malicious prosecution.”

Gischel had alleged that Schoewe had kissed him and grabbed his penis without his consent at a restaurant before they went back to his apartment and had consensual sex.

Judge Susan Dlott also cited “credible” evidence that Schoewe and a campus detective, William Richey (below), had developed a “romantic relationship” while he worked the case.

Schoewe’s testimony to lawmakers, which wondered if “there had been something slipped into my drink,” did not note that a toxicology report had found no drugs in her system soon after the alleged rape.

The Title IX panel she called “unbiased” also refused to ask Schoewe two lines of questions Gischel had posed, about a “personal or romantic relationship” with Detective Richey and whether she was actually “incapacitated” that night.

Both Schoewe and Richey refused to turn over their phones for inspection. Gischel’s criminal case collapsed because of Schoewe’s refusal, and Richey’s phone had been purged of text messages by the time Gischel’s attorney got a court order to extract his texts with Schoewe.

The university is now facing more charges by Gischel after Judge Dlott revisited her earlier ruling in light of a new precedent by the 6th U.S. Circuit Court of Appeals.

It should have investigated Gischel’s claims that Schoewe violated him, since the university had actual knowledge he may have been “too intoxicated to consent” under the university’s consent policy, Dlott said. Multiple university officials can be personally liable for violating Gischel’s constitutional rights.

Dlott also approved Gischel’s subpoena to the university seeking documents that could show it made statements to the Department of Education that suggested it was making “gender-based decisions or had gender-based motivations” in response to previous federal Title IX investigations.

CORRECTION: The original article misspelled the surname of Daniel Palmer’s chief of staff. He is Ivan Mallett. The error has been fixed.

MORE: California governor vetoes anti-due process bill

IMAGES: Shutterstock, Ballotpedia, Cincinnati Enquirer screenshot, Local 12/YouTube

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