Jennifer McClellan: Balanced bills aimed at sexual assault

Jennifer L. McClellan

Far too often, the General Assembly is forced to address a long-standing problem in response to a tragedy and intense media attention. For example, it took the Virginia Tech and Deeds family tragedies to spur action to address long-simmering problems with our mental health system. This year, the murders of Morgan Harrington and Hannah Graham, and the firestorm unleashed by the Rolling Stone article about sexual assaults at the University of Virginia have sparked action on how college campuses should deal with such incidents. Given the complex nature of sexual assault cases and the multiple federal and criminal laws that already apply, taking action in the pressure cooker of a 45-day session is not an easy task.

The most complex issue we have grappled with is reporting sexual assaults on college campuses to law enforcement. We have sought to balance the needs of the victim to gain support services and protect her privacy with the need to protect the community from serial predators. We have sought to craft a law that protects the public, and helps punish predators, but does not unintentionally discourage victims to come forward to report sexual assaults.

The House and Senate each passed omnibus bills requiring certain higher education employees designated by Title IX of the Civil Rights Act to report information about a sexual assault committed against a student or on campus to the school’s Title IX coordinator. Within 72 hours a review committee consisting of the Title IX coordinator, a representative of law enforcement and a student affairs representative must meet to determine whether disclosure of the incident to law enforcement is necessary to protect the health or safety of the student or community. Any alleged acts of sexual violence that constitute certain felonies must be disclosed to the commonwealth attorney without disclosing the victim’s identity absent consent.

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The Senate also passed a bill requiring higher education institutions to include a prominent notation on the transcript of each student who has been suspended, permanently dismissed or withdraws from the institution for sexual misconduct. The institution must notify the student of such notation and develop a procedure for its removal if the student is subsequently not found to have violated the institution’s sexual misconduct policy.

This bill is a direct response to the Jesse Matthew case. Two universities have confirmed that Matthew was accused of sexual assault while a student in 2002 and 2003. However, no criminal charges were brought, and Matthew withdrew from each school after complaints were made. Again, this bill seeks to balance the compelling interest of notifying the public of a threat with the rights of individuals accused of violating a school’s code of conduct through actions that would also constitute a crime for which they are guaranteed due process. (Matthew has been charged with murder in the case of Hannah Graham.)

Finally, the House and Senate expanded the collection of DNA samples to certain misdemeanors. For more than 20 years, Virginia has collected DNA samples from people convicted of certain violent and sexual felonies. If the person’s conviction is later overturned, the DNA profile must be expunged and the sample destroyed upon request. This law has proven beneficial in catching repeat offenders and has exonerated individuals wrongly convicted of crimes.

The House and Senate each passed bills to expand the collection of DNA to include individuals convicted of misdemeanor offenses that have been found to be linked to more serious felony offenses, such as stalking, violation of a protective order, sexual battery, infected sexual battery, sexual abuse of a child between 13 and 15, attempted rape, peeping, penetration of the mouth of a child with lascivious intent, indecent exposure, and obscene sexual display.

Many people believe if this law had been on the books, Hannah Graham’s slaying could have been avoided. Most agree this expansion could help catch sexual predators or violent offenders before their behavior can escalate to rape or murder, or it could exonerate the wrongly accused.

However, the expansion is not without some controversy. A DNA sample is not the same as a fingerprint. DNA samples provide the blueprint of your genetic makeup, as well as those of close family members. Expansion should not be taken lightly. And these bills include some misdemeanors that many would consider a step too far in the collection of DNA samples, such as unauthorized use of an animal, aircraft, vehicle or boat valued under $200, entering property for the purpose of damaging property and resisting arrest or fleeing from law enforcement. Stated differently, if a group of college kids took a professor’s car for an unauthorized joyride, or spray-painted graffiti on a neighbor’s garage, the state could collect their DNA. There is some hope these lesser offenses will be removed from the bill.

Notwithstanding the complexities of these issues, the General Assembly is well on its way to crafting meaningful legislation that balances the rights and needs of victims, the accused and the community as a whole. While bills passed by the House and Senate last week are still works in progress, they are a significant step in the right direction.