Sexual Assault Cases Force US Campuses into a ‘Delicate Dance’

May 29, 2014

By Jon Marcus at Times Higher Education

Variable laws and calls for better protection of students have colleges negotiating a minefield of legal and PR issues

A place of danger? Estimates suggest that just under one in five women will be sexually assaulted during their time at university

It was the stories that she heard from other students that persuaded Zoe Ridolfi-Starr to go public with her own.

An undergraduate at Columbia University, Ms Ridolfi-Starr said that she was sexually assaulted at the end of her first year. But it was not until she heard other women claiming mistreatment by their universities for reporting alleged sex attacks that she was finally persuaded to put the issue centre stage.

“A personal story is a lot more compelling and gripping than a policy proposal,” said Ms Ridolfi-Starr, the leader of a new group at Columbia called No Red Tape and one of 23 students who have filed a federal complaint against the university contending that it has failed to protect victims of sexual assault.

Organisations such as No Red Tape have cropped up on campuses nationwide, connected by social media and often led by students who claim to have been victims of sexual assault, and whose stories have led to demonstrations and widespread media attention. The resulting wave of anger has been as intense as it has been sudden. It has made sexual assault on campuses the hottest issue in US higher education and backed top universities into a thorny thicket of damning publicity, not to mention lawsuits and investigations, over how they have handled a problem that was previously under the radar.

The White House is now involved and is calling for changes in how institutions respond to allegations. In an unprecedented move, the US Department of Education has publicly released the names of all universities under federal investigation for their handling of sexual assault claims.

“Colleges and universities can no longer turn a blind eye or pretend rape or sexual assault doesn’t occur on their campuses,” Joe Biden, the US vice-president, said last month.

The 55 institutions on the list include Harvard, Harvard Law School, Princeton, Dartmouth College and the University of California, Berkeley. The Department of Education also took the equally unusual step of accusing at least one, Tufts University, of violating the law, and threatened to cut off its government funding. Under the spotlight, Tufts relented and agreed to change its policies for handling sexual assault claims.

But critics say that a rush to judgement, and calls to streamline the process by which students can file formal complaints that they were sexually assaulted, risk denying equal protection to another class of students: the ones being accused.

The federal government’s proposals allow for “only the most meagre sense of the rights necessary to secure fundamentally fair hearings”, said Greg Lukianoff, a lawyer and president of the Foundation for Individual Rights in Education.

“It’s a really delicate dance,” said Bisi Okubadejo, a lawyer who focuses on civil rights and employment issues in higher education and who previously worked in the Department of Education’s Office for Civil Rights. “On the one side certain actions could negatively affect the complainant, and on the other side there are legal issues relative to the accused.”

The controversy has exposed the complex and often conflicting demands that universities face from well-intentioned but confusing policies and regulations governing how they handle claims of sexual assault, and local laws that – to make matters worse – differ from one part of the country to the next.

Cases of alleged sexual assault on campus often occur between acquaintances and after drinking or drug use, and rarely is there any physical evidence or witnesses. All this makes them almost impossible to fairly arbitrate.

But universities in the US are required to become involved in such cases, even if they are not reported to police, thanks to a federal law governing gender equality in education – known as Title IX – that requires them to ensure that students are safe from sexual assault.

Growing presence: groups such as No Red Tape Columbia are widespread

The idea is that “handling it in court may provide relief for either the complaining party or the accused party, but not for the larger campus community”, Ms Okubadejo said.

The universities say another federal provision on privacy keeps them from disclosing details of alleged sexual assaults. But this in turn can conflict with yet another law requiring institutions to report all crimes that occur on their campuses.

Image is a concern

Critics contend that universities fail to report claims of sexual assaults for fear of lawsuits being brought by those who have been accused of such offences and disciplined (there have been several such cases already). But they also say that what university administrators fear most is bad publicity.

“It’s true that universities find themselves in a difficult situation. Either they sweep everything under the rug or they take it on publicly, but then it looks like [a university] is unsafe,” Ms Ridolfi-Starr said. “We need leaders who can put student safety over public image.”

Just under one in five female students reports being sexually assaulted on campus, the White House Council on Women and Girls has estimated, citing a 2007 survey of more than 5,000 women at two large public universities.

However, universities overall reported a total of only 3,948 forcible sex offences in 2012, the last year for which the figures are available, according to the Office of Postsecondary Education. That figure has risen by one-third since 2010, but experts on campus crime say that it is nowhere near the likely real number.

Under the newest federal proposal, a single investigator would be put in charge of mediating sexual assault complaints at universities, rather than large and unwieldy disciplinary boards. But that suggestion has raised the question of whether those accused would receive due process, which includes the right to cross-examine witnesses.

Laws about this differ from one state to the next. And that is another minefield, Ms Okubadejo said.

“The White House says a single-investigator model would provide an accused student with notice and an opportunity to be heard, but institutions would have to look locally at court decisions to determine whether that provides due process to the students,” she said.

But the idea behind the proposals is not to trade some students’ rights for others, Ms Ridolfi-Starr insisted.

“What we’re advocating for is a more rigorous process of investigation. The point is to make this impartial and fair for everyone involved. Nobody wants innocent people being held to account for actions they didn’t commit.”

Whatever the outcome, the student activists are confident that things will change.

“I think what we’ve been able to do,” Ms Ridolfi-Starr said, “is raise the stakes.”

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process