By Joe Cohn at The Hill
Politicians nationwide are crafting legislation to address the problem of sexual assault on campus. One controversial question is whether institutions of higher education should be required to report sexual assault allegations to law enforcement.
Last month, the debate took center stage after the Safe Campus Act was introduced in Congress. Under the bill, a student alleging a campus sexual assault may choose to keep the accusation from law enforcement professionals. But if he or she does so, then institutions may not initiate disciplinary hearings against the accused or provide accommodations like changes in class schedules and dormitory assignments. (My organization, the Foundation for Individual Rights in Education, believes the bill should be amended to allow non-punitive accommodations to remain available to students who decide not to report accusations to authorities.)
Critics have called the bill “absurd,” arguing that mandatory reporting to law enforcement will deter victims from coming forward. Writing in The Washington Post, attorney and journalist Jill Filipovic lamented, “Even when women do report to police, the investigation rate is low and the conviction rate even lower—only two accused rapists out of every 100 spend a day in jail.” But this ignores the fact that exactly none of the allegations withheld from police result in jail time. It also discounts the possibility that conviction rates would improve by getting accusations to police in a timely manner.
Critics of mandatory reporting believe that campus justice is fair. They are wrong.
Campus hearing panels stray beyond their competence when asked to adjudicate campus sexual assault accusations. They lack the ability to gather forensic evidence and the expertise to evaluate it. They lack the ability to subpoena witnesses or put them under oath. Parties do not have discovery, and rules of evidence limiting the use of improper information and requiring the consideration of relevant material do not apply. Except in North Carolina and North Dakota, neither student has the right to legal representation. Expecting panels of student conduct administrators, professors, and students operating under these limitations to consistently reach just results is unreasonable.
Noting these shortcomings, the Rape, Abuse & Incest National Network (RAINN)—one of our nation’s most respected victims’ rights advocacy groups—told the White House, “The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: they lack protections for the accused while often tormenting victims.”
Moreover, campus tribunals cannot adequately protect the interests of victims and the community. Rape, after all, is a serious, dangerous crime. When law enforcement and courts are not involved early, perpetrators remain free to prey on new victims. Does anyone think it was reasonable for New York University to wait two months before advising the police that one of its students had uploaded a video of himself lighting his girlfriend on fire as she lay passed out in her dorm? NYU apparently delayed reporting the incident to the police to honor the victim’s preference. Remember the public outrage when the University of Virginia kept “Jackie’s” accusations of a brutal gang rape internal? Had the allegations been factual, who would have been made safer by that decision?
Critics of mandatory reporting also claim that it violates the victim’s autonomy. This isn’t true. Requiring institutions to report allegations to police doesn’t require the complainant to cooperate with investigators. If the alleged victim doesn’t want to talk to the police, he or she doesn’t have to. But without notifying police at all, authorities are left in the dark, without the opportunity to offer support and services to complainants, or discover other evidence to prosecute the crime.
Cutting authorities out of the process and reducing due process protections for the accused doesn’t effectively address campus assault. If the goal is to hold perpetrators accountable and prevent recidivism, mandatory reporting is an important part of the solution. Getting accusations in the hands of trained professionals promptly could increase conviction rates and enhance confidence in the system for all parties.
If the criminal justice system has been ineffective in its response to sexual assault in the past, we should fix it, not create an inferior justice system on campus. Providing police with the necessary training and resources to competently, efficiently, and sensitively respond to allegations should be our priority.
Colleges and universities are uniquely situated to provide support services to student complainants. But law enforcement and courts are best suited to adjudicate allegations of sexual assaults. Our public policy should reflect that reality.