Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Claire Kaplan <>]

Wendy sent this post more than once and it never got distributed for some
strange reason.  So here it is.
Claire

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From: Wendy Murphy 
<>
Date: Sun, 10 Jul 2011 23:45:47 -0400
To: 
<>
Subject: Re: sapc Digest Sun, 10 Jul 2011 

Re: Special Boards for Sexual Assault

Dear colleagues;

It makes me nervous - as a feminist - to hear people talk of "special" 
anything
when it comes to sexual assault.  "Special" is too often code for "lesser" -
"different" - "other" and is used to legitimize unequal treatment of women. 
For similar reasons, I am opposed to "rape courts" and in general I oppose
"special" rules such as "rape-shield" laws (a longer story for another time,
but suffice it to say, rape-shield laws, in my
opinion, should be abolished).

I strongly favor, however, special training - though I am fiercely dedicated 
to
the idea that such training be conducted together with training re: the
prevention of ALL civil rights harms.  Campus officials should be thinking
about sexual violence in the same way that they think about targeted 
harassment
based on race, religion, etc.  It isn't that the substantive issues are always
the same, though they can be, but it should feel instantly like a civil rights
matter - and not only a "sexual assault" - when the investigation gets
underway.

In my article from many years ago on the "equity" mandate of Title IX, I argue
that schools risk OCR involvement if they adopt procedures for the handling of
sexual assault matters that are in any meaningful way DIFFERENT from the
procedures for the handling of allegations of other forms of targeted
harassment.  Equity means not only inherent fairness, but also fairness vis a
vis the way a school handles other forms of harassment on campus. 

Further to the point of special training is that investigators AND Board
members should be well-versed in rape myths and in the "culture of the
courtroom".  There is no equitable way to pass judgment on a matter unless
officials have been trained to engage in self-critical awareness of their own
biases, and educated about the nature of rape myths and the ways they affect
our feelings about and reactions to the evidence.  A keen understanding of the
way our cultural biases undermine fair judgments of victims is essential,
whether the board is considered a "sexual assault" specific panel or some
broader-entitled entity.

Wendy Murphy
New England Law|Boston

Note added 7/25/11:

Mandatory investigation is often framed as taking away choice, etc. from the
victim - and arguments in this context against mandatory investigations
typically state that this will reduce reporting.  To my knowledge, there is no
data to support this claim. While it may be the case that mandating
investigations obligates schools to act, this should be framed as the school
carrying out its "duty" - not "taking away victim authority".  This same 
debate
occurs all the time in the real world criminal justice system where women
victims of violence are given the "choice" to drop the charges - or the
"choice" whether police take any action after a report is made.  A few points:

1. Data from the real world regarding violence against women and mandatory
official action shows that when an official response is mandatory and the
decision whether to proceed is not imposed on the victim, recidivism rates are
dramatically reduced. Though it is sometimes difficult to know whether lower
recidivism rates reflect a reduction in reporting or a reduction in incidents,
the study design took this concern into account to ensure that they were
measuring only actual incidents.  After five years, data showed that mandatory
official action dramatically reduced incidents of harmful behavior without
significant negative consequences for victims.

2. This "choice" debate is not imposed on any other type of crime victim or
witness to violence.  Victims of gang violence and eyewitnesses to drunk
driving are not asked whether they want the system to do its job.  They are
expected to participate in the process.  Why "choice" for only women victims 
of
violence (a terrible exploitation of abortion rights language, I might add. 
This debate is not remotely about autonomy, privacy or authority over the 
self.
 The underlying incident IS, however and deserves civil rights treatment as
such).  Advocates will argue that sexual assault is "different" but this claim
lacks appreciation for the historical misuse of framing social problems form
women as "different".  It is a well-settled concept in women's rights activism
that "differentness" - while packaged and sold as if "special consideration" 
is
a good thing - is most often used to justify disparate negative treatment.  

3. If this were truly about choice, victims would have authority to "choose" 
to
compel school officials to act - even against official declinations.  In other
words, this concept of "choice" is typically used only to justify non-action 
by
school officials - and its effect is doubly harmful because the victim is
blamed for the decision.  If an offender commits additional acts thereafter, 
it
becomes the first victim's fault rather than the fault of school officials.  

4.  I agree with the suggestion that schools should develop central
repositories of information that are offender-based so that no matter what
happens in a given case, repeat offenders are easily identified.  I proposed
this many years ago in the university and military contexts - but the
resistance was substantial and opposition voices pointed to privacy concerns 
to
justify avoiding such repositories.  This concern is misplaced. There is no
reason a school could not adopt a policy of collecting data in an
offender-specific file.  Schools are reluctant to do this because it greatly
increases their liability exposure under the "deliberate indifference" 
standard
- and if they acknowledge having such a policy, they either must produce it
during litigation - or explain why they didn't gather data on a repeat
offender.  Thus, while it is a good idea to have such a file, schools will not
likely create them - which is yet another reason not to support the "choice"
option as there will be no way of assuring accountability in the absence of an
investigation.

In general, the mantra of "choice" is a snake in the grass that will
incentivize non-reporting by rewarding intimidation tactics.  Why wouldn't an
offender take steps to intimidate, threaten or coerce a victim not to proceed
under a policy that gives HER the power to prevent an investigation?  This is
basic stuff.

Wendy Murphy
New England Law|Boston