New DOJ Proposal Raises Concerns of Sex Offender Database for College Students Found Responsible for Sexual Misconduct Under Title IX

Public comment period ends Friday, Aug. 31.

On August 1, 2018, the Department of Justice’s (DOJ) Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) announced that it was exploring how institutions of higher education share, respond and coordinate information to prevent sexual assault perpetration. This project would collect information about current policies and practices utilized by colleges and universities regarding registered sex offenders who may be students or employees; individuals found responsible and sanctioned for campus sexual misconduct policy violations; and the review of criminal or disciplinary sexual misconduct history of prospective or current students.

The SMART Office, which was created to implement and administer the Sex Offender Registry and Notification Act (SORNA), has since denied that it intends to establish a national sex offender database for college students found responsible for sexual misconduct under Title IX. However, the office’s primary purpose is to help in the tracking of sex offenders, so it’s difficult to see what other reason it would have for collecting information that includes “individuals found responsible and sanctioned for campus sexual misconduct policy violations.” Also, no alternative purpose for collecting this information has been set forth by the SMART Office. Regardless of how the office actually intends to use the information at the moment, the collection and maintenance of this data by a federal agency is concerning in and of itself.

The sex offender registry as it currently exists is problematic for a number of reasons. Deborah Jacobs, the Executive Director of the American Civil Liberties Union of New Jersey, argues that[l]aws like banishment zone ordinances actually make us less safe, as they impede offender rehabilitation and thereby increase the likelihood of reoffense.” These laws subject many persons who have paid their debt to society and want to lead law-abiding lives to restrictions regarding where they can live, work, and visit. Those labeled as sex offenders lose jobs and get evicted (and/or encounter enormous difficulty finding work and housing) and experience threats and harassment in the communities where they live.

It is deeply troubling to think that we might subject college students found responsible for sexual misconduct under Title IX to this fate. Campus sexual assault proceedings don’t have the procedural safeguards that criminal prosecutions do, so the possibility of an incorrect determination that a student is “responsible” is substantial.

In a recent call to action, Families Advocating for Campus Equality (FACE) outlined some of the many problematic aspects of “school guilt determinations,” which include: imprecise and wide-ranging definitions of misconduct; inadequate notice of alleged violations; limitations on or denial of access to evidence and the opportunity to subpoena/question witnesses; no right to the assistance of an attorney; reliance on scientifically disproven and unsupported theories of victim trauma; no objective, experienced judge to ensure a fair process; barely more than a 50/50 standard of proof (meaning allegations need not be proven beyond a reasonable doubt) coupled with a lack of understanding of how to properly apply that standard; and unprofessional, biased, and ideologically driven investigations and decision making. As Scott H. Greenfield wrote in a recent blog post for Simple Justice, bringing students “’convicted’ by campus kangaroo courts” into the nightmare scenario that is the Sex Offender Registry would prove disastrous. Fortunately, the DOJ has requested public comments, giving you the opportunity to share any concerns about this proposal with the SMART Office. You can contact Program Specialist Samantha Opong via phone (202-514 -9320) or email (Samantha.Opong@usdoj.gov) before August 31, 2018 to express your objections.