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 offenses. 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 process 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 punishment 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 evidence don't matter, he says: "Your eyes glaze over and you do ultimately 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 policy, 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 responsibility 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 policies 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."
Showing 6 comments