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http://chronicle.com/article/Colleges-Face-Conflicting/126818/?sid=at&utm_source=at&utm_medium=en


March 20, 2011
Colleges Face Conflicting Pressures in Dealing With Cases of Sexual
Assault

Jason Malmont, The Sentinel, AP Images
By Sara Lipka

Students at Dickinson College, upset by its handling of sexual-assault
investigations, demanded a clearer policy, including mandatory expulsion
in cases of rape. But some experts argue that single-option penalties
could reduce already low reporting levels of the incidents.

Students at Dickinson College, upset by its handling of sexual-assault
investigations, demanded a clearer policy, including mandatory expulsion
in cases of rape. But some experts argue that single-option penalties
could reduce already low reporting levels of the incidents.


The work of investigating, hearing, and deciding sexual-assault cases
is complex and excruciating. Often it revolves around acquaintances,
alcohol, and hazy recollections.

Criminal prosecutors decline to pursue many "he said/she said" cases,
but colleges don't have that choice.

Federal civil-rights law requires them to resolve all reported
of-fenses. And increasingly, public pressure bears down just as
powerfully.

Advocacy for alleged victims has intensified in the past year. The
Center for Public Integrity published an investigation describing "a
frustrating search for justice" in a campus culture of secrecy and
indifference. The watchdog group Security on Campus proposed broader
federal legislation, even a requirement that colleges use the relatively
low standard of evidence "more likely than not." And at Dickinson
College this month, students occupied an administration building and
demanded that expulsion be the only available penalty for rape.

Meanwhile, confusion over existing law persists. The U.S. Education
Department's Office for Civil Rights recently found that two
institutions, Eastern Michigan University and Notre Dame College, in
Ohio, did not adequately consider the rights of sexual-assault victims.
Observers expect the office to release more guidance this spring on how
cases should proceed, apart from general campus-conduct systems.

But there may be no perfect model.

"More and more people have started thinking colleges should be the ones
to fix this," says Peter F. Lake, director of the Center for Excellence
in Higher Education Law and Policy, at Stetson University. "We've been
lured into doing something in a criminal-justice model that the
criminal-justice system itself hasn't been able to deal with."
Mandatory Sentencing

The dilemma is decades old, but the Dickinson students had some
suggestions. They demanded a clearer policy on sexual misconduct and
wider explanation of the proc-ess for reporting complaints. They offered
to work with college officials to define a range of sexual offenses and
assign a penalty to each. Rape had to mean expulsion. "It does seem like
the minimum punish-ment that should be given," says Anisah Hashmi, a
senior.

But single-option sanctions may not protect a campus. Experts,
including victim advocates, believe that such policies reduce already
low reporting levels. Many victims don't seek perpetrators' expulsion,
but rather, for example, no-contact orders.

For cases that are reported, single sanctions may decrease findings of
responsibility. "If the hearing panel has any doubt at all, they're
going to acquit," says Gary M. Pavela, a consultant to colleges on legal
issues and a former director of student judicial programs at the
University of Maryland at College Park. Technical explanations of
standards of evi-dence don't matter, he says: "Your eyes glaze over and
you do ulti-mately what you think is right."

Waves of critics have pointed out what colleges are doing wrong. In the
early 1990s, advocacy groups and the news media accused them of
shielding rapists. In the lacrosse saga at Duke University, observers
decried the rush to judgment. Scrutiny and strident calls for fairness
come from both sides, on campus and off, in general and in particular
cases, even when privacy law guards the facts.

Outrage over a specific case at Dickinson—students had written a
letter urging a young man's expulsion—spurred the protest this month,
as it did one in 2009. At that time, administrators began internal and
external reviews of the college's sexual-misconduct pol-icy, which
defines "consent" as well as six offenses: sexual harassment; sexual
assault; rape, which must involve penetration; incapacitated sex, with
somebody who is mentally or physically impaired; coercion, or pressure
to engage in sexual behavior; and sexual exploitation, such as
voyeurism.

With the reviews now complete, a committee of faculty, staff, and
students expects to present a draft of a new policy this spring,
detailing a fuller range of offenses, with corresponding sanctions. "We
want to be as clear and specific as possible" while leaving room for
discretion, says Jerry Philogene, an assistant professor of American
studies.
A Legal 'Backstop'

The Office for Civil Rights may soon clarify expectations for how
colleges handle cases. But institutions' definitions of offenses vary
widely, as do interpretations by individual members of any hearing
board. "There is tremendous inconsistency both among formal
institutional policies and among campus community members," says S.
Daniel Carter, director of public policy at Security on Campus.

Judges will, and do, help keep college proceedings in check.

"The courts are there as a backstop," Mr. Pavela says. Indeed, the
civil-justice system has been sorting out whether campuses are
adequately handling a criminal matter.

Victims of sexual assault have won major settlements against Arizona
State University, the University of Colorado, and other institutions,
arguing that they mishandled complaints and failed to hold fair
hearings. Students who are accused of offenses, found responsible, and
suspended often sue their colleges, alleging either violations of their
due-process rights or breach of contract. Duke warded off similar suits
by settling with students who were criminally indicted, suspended, and
later declared innocent.

A case involving the University of North Dakota drew attention this
month when the Associated Press reported that the alleged victim of a
student expelled for sexual assault had later been charged by local
law-enforcement authorities with filing a false report in that case. A
former student at Brown University sued it last year, claiming that he
had been summarily suspended after being falsely accused of rape by the
daughter of a major donor.

The swing toward victims' rights may make such cases more common, says
John Wesley Lowery, an associate professor of student affairs in higher
education at Indiana University of Pennsylvania. "That is one of the
claims that we'll start to hear: Training boards on sexual assault
creates an environment in which they are predisposed to find students
responsible."

Hoping to reduce the number of cases, colleges are investing ever more
effort in education programs. The bill favored by Security on Campus
would impose more requirements for such programs, despite uncertain
results. This month the Justice Department awarded Dickinson a grant of
nearly $300,000, in part, to make prevention education mandatory for all
new students.

The president of Dickinson, William G. Durden, told students that not
only policies and programs, but also their own attitudes, would reduce
sexual assaults on campus. "Of course we can do some things, and we
will," he said, "but I think it goes much deeper than that."

Higher-education leaders, not students, need to take responsibil-ity
for plumbing those depths, says David Lisak, an associate professor of
psychology at the University of Massachusetts at Boston, who consults
with colleges and the military on sexual-assault poli-cies and
prevention. He says he has seen more-sustained commitment to the issue
from generals than from trustees.

Forget awareness weeks. Boards and presidents need to introduce
long-term campaigns, Mr. Lisak says, and professors should study campus
data and hearing models. Only then can they look back to prosecutors.

"If the best minds in the country examine this and conclude that
there's really just no way to handle a serious criminal matter within
the judicial system," he says, "maybe this would be the impetus for
universities to start working together with the civilian jurisdictions
that surround them."


Juliette Grimmett
Assistant Director, NC State University Women's Center
Interpersonal Violence Services
3120 Talley Student Center
Raleigh, NC 27695
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f: 919-515-1066
 
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