Op Ed: Why On Earth Do We Let Colleges and Universities “Handle” Their Own Rape Cases?

May 19, 2014
By

By Kari O’Driscoll

Image credit: http://nyulocal.com/on-campus/2014/05/06/federal-investigations-bring-attention-to-campus-sexual-assault-problem/

Image credit: http://nyulocal.com/on-campus/2014/05/06/federal-investigations-bring-attention-to-campus-sexual-assault-problem/

On Tuesday, April 29, the White House issued a set of guidelines designed to address the hot-button issue of rape on college campuses. It would seem that the issue of sexual assault in the military has taken a back seat to the growing awareness of just how often college students are victimized sexually by other college students.  There is a push to gather more information as well as to re-think the ways in which these incidents are handled when they are reported. While I fully support these efforts, I am astonished at what I have learned in just the past few weeks about the culture of silence and ineptitude that surrounds this issue.

Three days after the first shot across the bow, the US Department of Education released the names of 55 colleges and universities currently under investigation for their mishandling of sexual assault cases. While I am pleased by this progress, one enormous question remains looming in my mind: why are colleges and universities “handling” sexual assault cases? If I were raped in the bathroom at my local supermarket, I wouldn’t expect the grocery store to “handle” it. I would call the cops and I imagine the grocery store would support that 100%. I’m not sure how or when this system of separate investigation and punishment began, but what it has created is a dangerous double standard that both perpetuates rape culture and allows some perpetrators to avoid well-deserved consequences.

Most colleges and universities are in a unique situation, given that a large number of students live in residence halls or school-owned properties. The majority of them have their own security force that is charged with keeping students and staff safe and most have also created some sort of internal judicial council, often comprised of staff and students. But there has to be a line drawn somewhere and it seems to me that these schools aren’t doing themselves any favors by taking on responsibility for dealing with crimes that are clearly out of their league.

As I see it, there are two major issues with the way these systems are crafted. The first glaring problem is that these institutions are not set up to investigate crimes and mete out punishments. They never were, and they frankly have no business doing so. In a May 1st NPR report, Tovia Smith asserts, “…colleges have a fundamentally different mission than the criminal justice system,” referring to remarks by Colby Bruno, senior legal counsel for the Victims Rights Law Center. Bruno’s work with victims has taught her that schools are more often than not dealing with allegations of sexual assault through an educational lens rather than from the perspective of justice. This process is probably just fine when it comes to students who have stolen school property or engaged in drunken vandalism, but when it comes to felony offenses, it is patently absurd.

In 1986, following the rape and murder of Jeanne Clery in her dorm at Lehigh University, Congress enacted a law requiring all colleges and universities receiving federal financial aid to disclose information about crimes committed on or near their campuses. I would say that notifying potential students of sexual predators living in their midst qualifies under this statute. And notwithstanding the legal ramifications of failing to report such crimes, I can’t imagine why any college or university would think it was a good idea to use their administrative or security staff to determine whether a crime had been committed when there are trained professionals who are paid to do just that.

Claire Gordon, a journalist for Al Jazeera America wrote an article on April 17th in which she also interviewed Colby Bruno. In one instance, Bruno is quoted as saying she has “met many school administrators who don’t understand or believe in their own policies.” If that is true, why would any school think it was a good idea to have their own policies and procedures in place to investigate serious crimes like sexual assault.  Why wouldn’t every school simply defer to the laws that are already in place and outsource the investigation and prosecution to those people who are qualified? The fact that we have separate systems for college students and military personnel than we do for everyone else means that a college student who is determined by their university’s judicial process to be guilty of sexual assault is not held to the same standard as any other individual walking the streets of this country. Why is rape any different when it is committed on a college campus?

It has been purported that students are often reluctant to report rape and other sexual assaults to authorities because they feel they will be re-traumatized by the police investigation process. It may initially feel safer to report a rape to someone on campus, but that is not a good enough reason to allow schools to police themselves, especially when it is becoming increasingly obvious that they are not capable of doing the job properly. Given what we now know about the absolute train wreck most colleges have made of dealing with such complaints, this strategy ultimately doesn’t serve the purpose of keeping students safe or punishing perpetrators adequately for the seriousness of their crime. Private investigations by university staff, who are not held to the same legal standard for information gathering as police officers are, could inadvertently have the effect of hindering a proper police investigation when and if the assault is reported.

In March of this year, a group of students at the University of North Texas created a petition on Change.org to pressure the school into providing rape kits in the health center on campus because the nearest hospital is five miles away. I have to say I disagree with this idea strongly.  If I were a victim of sexual assault, I would want the most highly trained person to administer my rape kit so that I could be more confident that the evidence would result in a conviction. Imagine the chain of custody nightmare that could ensue after a college health center employee administers a rape kit and the field day a defense attorney would have with whether or not evidence was collected properly.

Beyond the fact that colleges are woefully unprepared to handle serious criminal investigations, there is an obvious conflict of interest in doing so. Claire Gordon’s piece points this out quite glaringly. About fifteen years ago, Brett Sokolow, a consultant who works with colleges and universities around the issue of sexual assaults on campus, came up with a plan to “rebrand” rape for those schools. Sokolow explains that many of the schools he worked with, “had policies about rape, and recognized that rape happened. But when it came down to it, they just didn’t want to believe their own students actually raped.” Because he noticed that many college administrators were “squeamish” about the word rape, he ultimately coined the term “nonconsensual sex” which has been widely accepted by and integrated into the policies and student handbooks of a large number of schools over the last decade or so. Sokolow believes that this more bland term allows schools to have difficult conversations about criminal allegations more readily. Many victims’ rights groups beg to differ, saying that the word rape is ugly and uncomfortable for a reason – because the act itself is ugly and uncomfortable.

Frankly, these schools often invest a significant amount of time, energy, and sometimes, money, in their students, and nobody wants to believe that someone they admitted is capable of a violent crime. But the fact that so many of them are so incredibly uncomfortable with the idea of rape that they have to rebrand it in order to have frank discussions about it is precisely the reason they ought not to be in the business of investigating and punishing rape. Yes, the stakes are high if you botch an investigation and accidentally punish an innocent person, but they are equally as high if you allow a rapist to get away with the crime because you don’t want to ruin his life. How many sex offenders are on our college campuses offending again and again because their school lacks the resources and knowledge (or backbone) to adequately address the accusations of another student? How is that not a liability? And how is it fair to the students who remain on campus completely unaware that they are living among rapists?

In that same article, Gordon notes that, “According to a 2010 investigation by the Center for Public Integrity, only 10 to 25 percent of students found ‘responsible’ for a sexual assault were permanently kicked off campus.” These students are not behind bars because investigations carried out by schools are not legally binding. But when an attacker is allowed to remain on campus to pursue his degree despite the fact that a preponderance of evidence showed that he was guilty of victimizing another student, exactly what is the college saying? It says to me that they have determined that one student’s concerns are more valid or valuable than another’s. By failing to properly address these issues, the university is reinforcing the messages that perpetuate rape culture, that rape doesn’t really matter, or that rape victims don’t really matter, that rape “isn’t that bad.” If I were raped by a fellow student who was determined to be guilty but not removed from school, I think it would impossible to feel safe on campus anymore. I wonder how many female students have left school because their attacker wasn’t forced to leave.

In giving over the investigation and prosecution of all sexual assault cases to local authorities, colleges and universities would be doing themselves and their students an enormous favor. While there still may be some privilege or bias on the part of individuals involved in the investigation, it is less likely to matter whether the accused is the star quarterback of the football team. Yes, our legal system has a lot of room for improvement when it comes to rape, but if rape is so awful that colleges and universities can’t even bear to use the word, they certainly can’t be trusted to thoroughly investigate rape allegations on their own. And there is no reason whatsoever that a college student ought to be treated differently than any other individual when it comes to serious criminal behavior. Living on campus or in a fraternity or sorority house does not render you above the law.

The recent actions of the White House and the Department of Education are admirable as a first volley in this battle, but it is far past time for us to take rape and sexual assault inquiries out of the hands of colleges and universities forever.

____________________________________

Photo_5-2Kari O’Driscoll is a non-fiction writer and book reviewer for BookPleasures.com. She writes about social justice, health care, parenting and spirituality, and her most recent work has appeared in “Get Out of My Crotch! Twenty-one Writers Respond to America’s War on Reproductive Health and Women’s Rights” and “The Cancer Poetry Project, Part 2.” Previously, her work has been syndicated by BlogHer Publishing Network and published in the online magazine BuddhaChickLife, as well as The Feminist Wire.

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23 Responses to Op Ed: Why On Earth Do We Let Colleges and Universities “Handle” Their Own Rape Cases?

  1. Stephanie Gilmore on May 19, 2014 at 8:21 am

    Kari, THANK YOU!! Please contact me — I really want to talk further with you about this piece. Stephanie

    • Kelly Moore on May 19, 2014 at 9:41 am

      Dear Ms. O’Driscoll, Your piece betrays a deep and harmful ignorance of the objectives of the young activists working so hard to obtain better enforcement of school honor codes. In the first place, you ignore the cold and hard fact that very few allegations of rape are ever prosecuted by police and DAs. Leaving rape victims to the mercy of our justice system is no mercy and no justice. Second, SCHOOLS HAVE AN ABSOLUTE OBLIGATION to determine — based upon a preponderance of the evidence — whether an honor code violation has occurred and what they must do in response to protect their own students in light of such violation. The lower burden of proof is there to help student victims — one hopes that a violent student will be removed from the student population so that rape victim and rapist will not have to continue to go to class together, eat together, sleep in the same dorms. Please, PLEASE stop supporting the ghastly notion that victims should be deprived of this EXTRA layer of potential protection and left solely to the tender care of the police. You are doing terrible injury to the college rape movement.

      • Kari O'Driscoll on May 19, 2014 at 1:13 pm

        Kelly, I am sorry that that was your takeaway from this piece. I appreciate your thoughts and feedback. I am absolutely in favor of all women and girls getting the support and justice they deserve and it is my belief that to divide our efforts among college activists and military activists and “regular” activists only dilutes our power. Sexual assaults are serious crimes and they ought to be treated as such, regardless of where they occur. Yes, we need to work much harder to make sure that our police officers and prosecutors do their jobs with compassion and respect for the victims as well as sticking to the letter of the law. We simply cannot rely on organizations like schools and the military to do jobs that they are not trained to do and that they have significant conflicts of interest in completing.

        • Kelly Moore on May 19, 2014 at 3:02 pm

          If they are not equipped, they must become equipped. Colleges get rid of violent offenders for other kinds of crime; they get rid of plagiarists and cheats and thieves. Why deprive a rape victim of the use of a “preponderance of the evidence” tool to help protect her or himself? We can alter the “conflict of interest” factor by making college rape statistics patent and public through mandatory anonymous exit surveys, and we can require the schools to get equipped to better handle student-on-student violence. Not every victim is willing or able to face the gauntlet of police involvement — shall we deprive those victims of every other avenue of assistance? Again I urge you to consider that you are hurting the movement by taking this position.

          • frederique on May 19, 2014 at 4:10 pm

            There is no way to eliminate the conflict of interest. How would this happen? Campus police do not have the experience of police who arrest for violent crimes and investigate them regularly. The arrest rate in a normal police dept can be 1 for every four reported rapes. That isn’t bad. There is no possible way a University will ever be that successful. Please don’t make us hope for something that would have happened by now if there were not structural problems with the very idea.

          • Kelly Moore on May 19, 2014 at 5:22 pm

            Frederique, the conflict of interest arises because it is easier to make the University *seem* safe by hiding the problem than to actually give the victim a fair hearing and do something about the problem.

            But if the problem can’t be hidden — if it is disclosed by yearly posting of the results of the mandatory surveys — then the University’s interests are realigned, refocused on obtaining a fair resolution of the problem put before them, i.e., determining whether victim is more likely than not telling the truth, and if she/he is, determining how best to help the victim complete his or her education without further trauma.

            The police are not in the business of providing these kinds of accommodations to students. They serve a different purpose — punishment of criminal behavior. Their purpose is legitimate (if often poorly performed in the area of sexual violence), but IT DOES NOT OBVIATE THE NEED TO PROVIDE EQUAL ACCESS TO EDUCATION to the young women who are the bulk of student-on-student sexual violence.

            Making colleges more effective at dealing with student-on-student sexual violence — through prevention, education and legitimate adjudication of honor code violations — is critically necessary to ensuring women their Title IX-guaranteed equal access to higher education.

          • frederique on May 19, 2014 at 5:46 pm

            I’m sorry but the idea that rape can be handled as an “honor code” violation just chills me. Sexual assault is a criminal matter. I am not sure why you’d be suggesting someone who wants it treated as such is against all other measures taken by a school to address student needs. But attempting to maintain a police force that is adept at handling rape is a ridiculous thing to expect of public safety. The conflict of interest that will never go away is that the student who raped and the student raped are both capable of suing the University. The days of pretending students don’t get raped are over- that’s not the conflict of interest I’m talking about. Anyone can determine how many rapes are likely happening on a campus by existing average rates of rape. I am talking about the fact that a University can be sued by the rapist. This is why we need police from outside the campus. I just can’t understand why you would think this is a bad idea. What we have now is a bad idea. And no one wanting rapists arrested is against the other opportunities offered victims and students you have mentioned. Why would you think that followed? Sorry to sound frustrated, but this is just so important.

          • Kelly Moore on May 20, 2014 at 3:27 pm

            The point I am trying to make is that keeping a SECOND avenue open for rape victims–for obtaining some justice, some help–is critically important, for three reasons:

            First, many victims are unwilling to go to the police, particularly victims of color or LGTB victims. There are good and substantial reasons that survivors are not willing to submit themselves to the police and even though I wish everyone would report, we must support victims who cannot endure that process.

            Second, the much lower standard of proof available in college adjudications can be a huge advantage to victims in obtaining some of the redress they need — like not having to face their perpetrators in class every day, or live in the same dormitory with them. Ideally, all rapists should be expelled, and that is a goal the college activists are working towards.

            Third, some of the assistance a victim needs cannot be obtained through the police–the aforesaid removal of the perpetrator from the victim’s environment, in addition to counseling and other forms of aid.

            It would be a terrible mistake to foreclose this avenue of victim aid and redress. Keep both forums for justice open and allow the victim to use one or both.

    • Kari O'Driscoll on May 19, 2014 at 1:34 pm

      Thank you! I’d love to contact you, but don’t know how. What’s the best way?

  2. […] a very interesting op ed over at Feminist Wire which is well worth a read. (Thanks for the tip, L!) The author’s main point is that lost in […]

  3. frederique on May 19, 2014 at 4:07 pm

    Thank you so much for this. In South Carolina there is actually a law that the Colleges interpret as requiring students to *only* go through campus police. This is a total nightmare. The campus police lack nearly any experience with arresting rapists, and the conflicts of interest begin immediately- as the accused often gets a lawyer. It makes College officials complicit in hiding rape (and boy, they don’t like that term), and who can have any confidence in an institution that does that?
    Check the arrest records for rape on any campus, compare them to the arrests for rape in the surrounding jurisdiction and you see the results of these policies and (my God) laws.

  4. Ilonka Michelle O'Neil on May 19, 2014 at 4:33 pm

    Excellent piece.

    Handling it privately does not work. Think, the Vatican. Think, Penn State. The campuses are interested in covering their butts, not justice. The bottom line is money. We don’t want out school to look bad.

    Sure, have a rape crises group at the college, offer counseling for victims, offer a companion to accompany her to the police station, but get the real police to handle rape investigation.

  5. anonymous on May 19, 2014 at 10:34 pm

    Kari, Kelly Moore’s point above is well-taken. The standard of proof (under Title IX, though this might be changing with Campus SaVE) for campus investigations is “preponderance of evidence” — which means simply that it is more likely than not that the assault occurred. For criminal investigations outside the university, the standard is higher. In the case of a non-consensual sex, assault, or rape that can be verified via a rape kit, then, yes, it makes sense to go to the police. And that is in fact what Title IX requires that college administrators do in such cases — support a victim in going to the authorities. But many cases, sadly, fall into the grey area of “he said, she said” incidents. And for those, a student is much better off going to the campus authorities.

    Please, before you take such a strong stance, talk to to the activists who have been working so hard on the issues and understand the subtle differences.

    • Kari O'Driscoll on May 20, 2014 at 1:57 pm

      You are right, and your points are well-taken, too. I want to emphasize that we are all seeking the same things here – justice for victims and a system that supports them as they seek that justice. I appreciate your more nuanced understanding of the Title IX regulations as well. As someone who once served for several years on my university’s Judicial Council, I can say that is incredibly difficult to overcome the biases of students and staff who are friends with the accused or have a vested interest in one verdict or another. That is why I believe that allowing large institutions to police themselves quickly becomes problematic for everyone involved. I wholeheartedly support involvement of campus staff, whether they be security or counselors or teachers, in educating students about incidents and processing following any sort of sexual assault, but the more we can document behaviors with proper authorities and repeatedly send the message that this type of behavior is absolutely unacceptable, the more hope we have that the tide may turn and we’ll see a day where the shame and stigma resides with the perpetrators and not the victims.

  6. […] that colleges do not give sufficient protection to the accused, but it can also be heard from other quarters.  This response is setting up a false dichotomy.  When a serious crime like sexual assault is […]

  7. Will Smith on May 26, 2014 at 8:06 am

    My large urban university has a real police force with scores of trained officers and arrest powers. If drunken vandalism occurred they would arrest the student, who would be convicted according to the standards of US law. The honor system would have its say on enrollment.

    Even more serious crimes should also be handled by police. I don’t think any students, male or female, are better protected by amateur hour play courts.

  8. […] A great question from this article on why, with the lack of progress on rape cases in colleges, these colleges are in charge in the first […]

  9. CDK on June 1, 2014 at 9:20 pm

    I am the father of 6 children; 4 girls and 2 boys. Two older girls are already off at college. The 2 boys will be in a few years. So, here’s the quandary: In a ‘he said / she said’ rape accusation, how exactly does a college handle that? What, exactly, is preponderance of evidence that could lead to expulsion for the accused? It seems to be, despite having 4 girls, that a higher standard is still needed.

    • Kelly Moore on June 2, 2014 at 1:46 am

      The supposed quandary of a “he said/she said” scenario is virtually a mythical beast — there is always supplementary evidence, whether that is outside witness testimony (going either direction) or physical injuries or the hideous emotional injuries suffered by rape victims. I know dozens of college rape victims and all of them have demonstrable traumatic symptoms, from sudden declines in grades to inability to attend class or even leave their rooms to suicidality to eating disorders, etc.

      And as the father of 6, there is something else you need to consider: in a school of 30,000 (USC, for example), the best estimate is that one woman in six will be sexually assaulted over four years, or one out of 24 every year. In the meantime, USC has recorded on average just 12 reported sexual assaults per year, meaning that one boy in 1,250 will be accused. Even if every single one of those accusations is false, the risk your daughter will be raped is 50 times greater than the risk your son will be falsely accused.

      So get some perspective. Teach your sons to obtain enthusiastic consent from their partners and you shouldn’t have to worry about them at all.

      • Kelly Moore on June 2, 2014 at 2:20 am

        I would like to add, Mr. CDK, that if any of your daughters ever are raped and work up the courage to tell you, you’re not going to have problem believing them. You will see her grief as you work with her to pick up the shattered pieces of her life, as you encourage her to finish college, as you help her find new plans for her life because her old plans are ruined tatters — she’ll never get into that graduate school she once aspired to. Everyone else will tell you why she can’t be believed — she was drinking, she was in the boy’s room or he in hers, they were making out, she’d been flirting with him, her skirt was too short, she’s just ashamed and crying “rape” because she regrets the sex. They’ll give you a million reasons why “we shouldn’t ruin that young man’s life.” But you’ll know: he’s a damn rapist and nobody gives a damn.

  10. CDK on June 2, 2014 at 7:23 am

    I am glad you are willing to at least use ‘evidence’, even if it is ‘supplementary’. And I am not trying to delve into the emotional aspects of this. But, I simply think the burden of proof to discipline or expel (or worse…), should be a preponderance of evidence, and not simply ‘more likely than not’, or 51% chance. I certainly understand both sides of the issue, and I certainly do not condone any situations you describe, but I think we just disagree over the proof needed. I agree with the main tenets of the original article: school are not and should not be there ones investigating, prosecuting, and handing down judgements in these type of criminal cases.

    • Kelly Moore on June 2, 2014 at 12:09 pm

      A “preponderance of the evidence” as a legal standard is “more likely than not” or any weight of evidence that tips the scale one way or the other. The preponderance standard is used in almost all civil legal matters (e.g., personal injury, breach of contract, etc.) It is the most appropriate standard to use when trying to determine which young person should be deprived of an education — the alleged rapist, or the rape victim condemned to attend classes and live in the same dorm as her attacker unless he is found responsible and pushed out the door. Putting a higher burden of proof on a victim means that most of these assaulted girls will obtain no protection and therefore live in fear or drop out themselves.

      Higher evidentiary standards are “clear and convincing” (used for some kinds of civil commitments) and the criminal standard of proof — beyond a reasonable doubt. Neither standard is appropriate for this civil issue of whose education should be impacted — rapist or victim.

      • CDK on June 2, 2014 at 12:18 pm

        I guess we just simply disagree on what standard is required; 51% to me is simply not enough in this circumstance to have someone ‘deprived of an education’. I recognize the difficulties that you spell out for the accuser, but I would still need to be convinced to a higher degree of certainty. I would like to see exactly how some of these cases are handled, and the types of evidence they actually have to make this decision. On a case by case basis, I might be convinced more thoroughly depending on the circumstances. And, it might be that the ‘mythical beast’ of a he-said she-said situation really does not exist…I have no data and no insight into what different cases or schools accept as evidence. And, that makes me a bit uncomfortable with schools handling these cases to begin with.

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