Colorado bill would ban attorneys from defending clients in college sexual assault investigations

A bill that would significantly alter the way Colorado colleges handle sexual assault investigations passed the House on Wednesday, but it carries some contentious changes, KCNC-TV reported.

The bill, HB 18-1391, would bar attorneys from actively representing either party in a sexual assault investigation, and would set a uniform burden of proof for sexual assault cases at Colorado universities.

What does the bill say?

HB 18-1391, "Sexual Misconduct in Higher Education" aims to require higher education institutions to set clear policies for sexual assault reporting and investigating, and to establish minimum standards for those policies.

There are two main sticking points causing controversy about this bill:

• The bill would limit the involvement of legal counsel in proceedings. The accuser and the accused would have "the same opportunities to have an advisor or other person present during any part of the proceeding; except that the advisor or other person is not allowed to speak on behalf of the complainant or responding party during the course of the proceedings."
• The bill sets a uniform statewide standard of proof for sexual assault accusations on campus. The bill that passed the House required the "preponderance of evidence" (more likely than not) for accusers, while some lawmakers want to amend that to be a standard of "clear and convincing evidence." Currently, under Title IX, universities can choose whether they want to adopt a "clear and convincing" standard or "preponderance of the evidence" standard.

The logic behind barring attorney participation in investigation proceedings is that some believe it levels the playing field.

According to Raana Simmons of the Colorado Coalition Against Sexual Assault, attorneys "turn investigations from a truth-finding process to a who has the most money process."

In the burden-of-proof debate, advocates of a higher burden say it protects the accused from false accusations. Advocates of the lower standard say a "clear and convincing evidence" standard would discourage victims from coming forward.

What's happening now?

The bill, having passed the House, is now working its way through the Senate, where significant amendments are being considered.

According to the Colorado Independent, the Senate has amended the bill to include allowance for colleges to use the "clear and convincing" standard, and to allow for punishment for participants who are found to have been untruthful through the investigation process.

"I think it is a question of whether we are going to provide fundamental fairness to both parties," said state Sen. Bob Gardner (R-Colorado Springs) to the committee. Gardner supports the amendments.

The amendments have caused division, even within parties, about the bill, which is now set to go to the Senate Appropriations Committee.