NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
By Michelle Goldberg at The Nation
During her freshman year at Occidental College in Los Angeles in 2010, Audrey Logan says, she was raped on two separate occasions by a young man she considered a friend. Because she knew him and had been very drunk both times, it took a while for her to identify what had happened as an assault. “I really believed rape happened in the dark, by people you barely or don’t know, and weapons or group force were always involved,” she says.
Such a reaction isn’t uncommon. According to a National Institute of Justice study, campus rape victims who are incapacitated by drugs or alcohol very rarely report their attacks to police, and more than a third say it’s because they didn’t realize a crime was committed or harm was intended. “It wasn’t until a close friend at another school simply listened and validated my feelings that I finally was able to start my arduous healing process,” Logan says. Once she accepted that she’d been violated, she waited until March of her sophomore year, when her assailant was studying abroad, to report him to the administration.
In a meeting with someone from the dean of students’ office, “I explained what had happened, and the woman I was reporting to looked like a deer in the headlights,” Logan says. The administrator, she says, didn’t direct her toward any resources or review her legal options. “It really set the tone. Things only got worse from there. There was just a level of professionalism that was lacking throughout the entire process.”
The dean of student life acted as the investigator in the case. When Logan arrived at her office to give a statement, the dean’s recorder was broken. Instead, she took notes. Later, she produced a document that was missing important information.
In May 2011, there was a hearing with a panel made up of faculty and administrators. Logan’s alleged assailant appeared via Skype. “One of the worst parts of the hearing was that each party was allowed to ask the other questions, and those questions would be reviewed or filtered through the hearing board,” Logan says. So her alleged rapist would direct questions to her, and she would wait as the board decided whether they were relevant and she had to answer them. “It was a really revictimizing experience,” she says.
At one point, after a break, she returned to the room to hear the members of the panel chatting amiably with her accused attacker about his finals and the weather in the country where he was studying. “How do you come into a room where everyone is laughing with your rapist?” she says.
There was surprisingly little disagreement between the two about the facts of the case, only about what those facts meant. The young man argued that she’d been extremely drunk during both encounters, Logan says, as if that somehow exonerated rather than indicted him. “He was using the policy violation as an excuse for his policy violation.”
In the end, he was found responsible and expelled. Then he appealed, arguing, in part, that since he’d been drinking too, technically she was an assailant as well. Logan says that Occidental’s lawyer began pressuring her to reach a private settlement with the man’s family, but she refused and the appeal went forward. Again, the young man lost. He would be kept off campus for good. It was the fullest victory a victim can expect in a case like this, and yet Logan felt more devastated than vindicated. “The adjudication board itself was one of the worst things I had to experience outside of the actual assault, and in some ways it was worse,” she says.
In the nationwide controversy over the proper response to pervasive sexual assault on college campuses, there is one thing almost everyone agrees on: school disciplinary boards have rarely done a very good job of handling these cases. That’s partly because these boards were never intended to try serious crimes. Composed of faculty, administrators and sometimes students, they were originally created to handle honor-code violations like plagiarism and underage drinking. Their members generally don’t have training in law, investigation or the use of physical evidence. There are rarely hard and fast rules about what sort of information is and isn’t admissible. Yet due to a combination of law enforcement failure and federal regulation, they are on the front lines of the campus rape crisis.
As months of harrowing headlines have made clear, the dimensions of that crisis are staggering. According to an April report of the White House Task Force to Protect Students From Sexual Assault, “One in five women is sexually assaulted in college.” This figure, which comes from the National Institute of Justice’s 2007 “Campus Sexual Assault Study,” has been much disputed by conservatives, but according to a detailed analysis by PolitiFact, “the overall findings in the study were on par with similar surveys conducted over the years that have measured sexual assaults on campus.”
The vast majority of campus rape survivors know their assailants, and they rarely go to the police—according to one Justice Department report, fewer than 5 percent of attempted or completed rapes on campus are reported to law enforcement. For many victims, then, the trauma doesn’t end with the attack itself, since they face months or years of sharing school facilities with their rapists, who continue their college careers with impunity.
When students do report these assaults, they are much more likely to turn to someone in the university community than to law enforcement, says David Lisak, a leading scholar on campus rape and a consultant for universities trying to develop responses. “Because of that, universities are stuck. They can’t ignore these reports, either morally, ethically or legally. So this is where we are: confronted with a problem that is really mostly serious criminal conduct and asking universities to respond and investigate and adjudicate. And that really presents some pretty serious paradoxes and anomalies and, in some ways, even absurdities.”
There are three major and sometimes conflicting criticisms of the school disciplinary process for sexual assault cases. First, to some—though by no means all—victims’ advocates, treating rape cases as internal disciplinary matters to be handled by amateurs trivializes a serious felony. In a February letter to the Obama administration, the Rape, Abuse and Incest National Network (RAINN), the nation’s leading anti-rape group, wrote: “It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected…when it comes to sexual assault?”
Second, many victims find campus disciplinary boards more invested in protecting the school’s reputation than in seeking justice—one reason that sixty colleges, Occidental among them, are now being investigated by the Education Department for their handling of sexual violence and harassment complaints.
Finally, defense attorneys and civil libertarians—as well as rape-skeptical conservative pundits—condemn the boards as kangaroo courts in which the accused are denied ordinary due process.
Yet if no one is happy with the status quo, the alternative isn’t clear. For some critics, the solution is simple: turn rape cases over to the criminal justice system. But the reason campuses are handling these cases in the first place is that the criminal justice system has failed rape victims so consistently. “I say this as a criminologist: I’ve given up on the criminal justice system,” says Danielle Dirks, an Occidental sociology professor and one of the women who filed complaints against the school with the Education Department. “College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.”
So far, though, that’s mostly theoretical, since few campuses are “doing right” right now. The question, then, is twofold: Can the college disciplinary processes tasked with protecting students from rapists be saved? And should they be?
Two federal laws govern the way colleges handle rape cases: the Clery Act and Title IX. The former is a 1990 law, named for a Lehigh University freshman who was raped and murdered by a fellow student, requiring the public disclosure of campus crime. A 1992 amendment to the law codified a Campus Sexual Assault Victims’ Bill of Rights. Title IX is a 1972 civil rights law banning sex discrimination in education. Though it is best known for mandating equal access to athletic programs, a 2001 regulation made it clear that Title IX obligates schools to take action on sexual assault.
Yet according to Colby Bruno, senior legal counsel at the Victim Rights Law Center, many schools until quite recently didn’t realize that Title IX applied beyond sports. Two things changed that. The first was a landmark investigative series on campus rape by the Center for Public Integrity. Beginning in 2009, it made the scale of the problem—and the failure of universities to deal with it adequately—shockingly clear.
Among other things, one of the reporters on the project, Kristen Lombardi, documented the paltry punishments doled out to students found responsible for sexual assault. “Just more than half the 33 students interviewed by the Center said their alleged assailants were found responsible for sexual assault in school-run proceedings,” she wrote. “But only four of those student victims said the findings led to expulsion of their alleged attackers—two of them after repeat sexual offenses. The rest of those victims said discipline amounted to lesser sanctions, ranging from suspension for a year to social probation and academic penalties, leaving them feeling doubly assaulted.”
The impact of the center’s work was far-reaching, and led to efforts to force schools to take sexual assault more seriously. “Once that was national news, I think the White House and the Department of Education and even schools, to a lesser degree, picked up on the fact that this was a problem,” Bruno says.
In 2011, the Education Department sent a letter to every school president in the country clarifying their Title IX obligation to investigate rape cases whether or not there was a concurrent police investigation. Widely known as the “Dear Colleague” letter, it standardized some of the procedures for adjudication. It called for accusers to be spared the sort of questioning by their alleged attackers that Logan endured and, most significant, mandated that campus hearings employ a much lower standard of evidence than that used in criminal cases.
To secure a sexual assault conviction in criminal court, a prosecutor must prove guilt beyond a reasonable doubt. But there are other standards used in civil cases, as well as in some criminal matters. When the Education Department’s letter went out, some schools were using the “clear and convincing” standard, meaning that victims had to prove that it was “highly probable or reasonably certain that the sexual harassment or violence occurred.” That, the Education Department said, was too high a burden. Instead, it instructed schools to use the lesser “preponderance of the evidence” standard—“i.e., it is more likely than not that sexual harassment or violence occurred.” The standard is sometimes expressed as requiring a 51 percent likelihood of guilt for a finding against the accused.
After the letter, the number of cases being tried by campus panels started multiplying, as did punishments. “If you ask anyone who practices in this area, they would say, yes, the ‘Dear Colleague’ letter represented a sea change in the approach that colleges are taking to this,” says Justin Dillon, a partner at the Kaiser Law Firm, which is known for representing students accused of sexual assault in campus disciplinary processes. “What it did is, for the first time, truly scare colleges and universities about the possibility of losing federal funding if they didn’t do what the government wanted them to do.”
Naturally, this pleased many victims’ advocates. Far from being unfair to the accused, says Bruno, the preponderance-of-the-evidence standard “helps counterbalance so much of the bias and the rape culture that permeates these cases.”
After all, women reporting rape are routinely dismissed or doubted by the people charged with protecting them. Dirks, who has accompanied two student rape victims to file reports with the Los Angeles Police Department, describes encountering hostility mixed with indifference. In one case, she says, a student was told it couldn’t have been rape if she voluntarily entered her assailant’s dorm room.
Emma Sulkowicz, a 21-year-old Columbia University student, had a similar experience. Sulkowicz, who has joined in a Title IX complaint against her school, has spoken out widely about her horrifying experience with a campus disciplinary board. At one point, she says, one of the presiding administrators asked her incredulously how anal rape was possible without lubrication. Her alleged attacker, who has also been accused by at least one other student, was ultimately found not responsible.
After being featured prominently in a New York Times story about campus rape, Sulkowicz was repeatedly criticized for not calling the police. This spring, she decided to do just that, and it was a deeply traumatic experience. Four officers came to interview her, and a friend of hers captured the conversation on her phone. One repeatedly berated her for not calling 911 and harped on the fact that she’d had consensual sex with her assailant in the past, saying it sounded like he’d just been “a little weird that night.” A defense attorney, he told her, would “rip you apart.” As bad as Columbia’s process was, Sulkowicz says, “it was definitely a worse feeling to have someone straight-up tell you that you weren’t raped.”
Sulkowicz eventually met with members of the special victims unit, who were more sensitive, and she says an assistant district attorney has contacted her about collecting evidence. But students in less high-profile cases often don’t even get that far. According to RAINN, for every forty rapes reported to the police, only ten lead to an arrest and only four to a felony conviction.
Some of the ways that our system fails rape victims are amenable to reform: police officers can be trained to be more empathetic, prosecutors encouraged to take riskier cases. But the constitutional protections offered to criminal defendants will likely always mean that many rapists get away with their crimes, particularly if there is no physical evidence. If a defendant is to be presumed innocent, then his accuser cannot be given the benefit of the doubt. “In a criminal case it is entirely the victim on trial, not the perpetrator,” says Colby. In the campus process, under the new rules, the opposite is true.
This raises new concerns about fairness, however. At the hearings, the accused often aren’t allowed to have their lawyers with them during questioning, Dillon says. “The investigation is usually incredibly shoddy,” and it often comes down to which person the panel believes. “In a swearing contest, a young man loses 51 to 49 percent and never has the ability to cross-examine his accuser. He’s then branded as a rapist, which follows him around for the rest of his life.”
So far, it’s been conservatives, with their highly selective concern for certain classes of criminal defendants, who have been the most vocal critics of these disciplinary proceedings. But civil libertarians also warn that we’re seeing a disturbing end run around due process. “They’re trying to set up a much lower-quality shadow justice system on campus,” says Robert Shibley, senior vice president of the Foundation for Individual Rights in Education (FIRE), whose board includes both conservatives and left libertarians like Wendy Kaminer and Nat Hentoff. “The central problem is that it’s an extremely serious offense—a felony offense—being handled by a group of people who aren’t trained and aren’t necessarily competent.”
Prior to the Education Department’s 2011 letter, FIRE had been contacted only once by a student accused of sexual assault, Shibley says. “I probably get two calls a week now,” he adds, saying that his group has become “a clearinghouse for people who feel falsely accused.”
There is, of course, no reason to take these callers’ claims at face value. Despite the popular myth—fanned by the conservative media—that vindictive or regretful women routinely “cry rape,” false claims are very rare. In fact, according to a 2010 article that Lisak co-authored in the journal Violence Against Women, the real prevalence of false claims is somewhere between 2 and 10 percent.
But false accusations do happen. Critics of the campus system point to a small but growing list of men who were branded as rapists and kicked out of school but vindicated later. One of the best-known cases is that of Dezmine Wells, a star basketball player at Xavier University whose resident adviser accused him of rape following a game of Truth or Dare. He was expelled in 2012 after a board consisting of faculty members, administrators and students found him responsible. But a grand jury rejected criminal charges, and the prosecutor in the case ended up excoriating the campus panel, saying: “There is something seriously flawed with a procedure where a young man and his accuser appear before a group of people, which I would suggest probably isn’t very well trained in assessing these types of cases, and they sit there and tell their stories. No lawyers, nothing. There’s just something wrong with that.”
Wells sued Xavier, claiming that the school, which has been investigated for Title IX failures, scapegoated him to prove that it had changed. They reached a confidential settlement in April. “These cases are going to be brought more and more in the years to come because of the push by the government to lower the burden of proof, to not allow cross examination and to crack down even further on the rights of the accused,” Dillon says.
Nancy Chi Cantalupo, a researcher at Georgetown Law and an expert in Title IX and sexual assault, insists that most of these cases won’t be valid. She argues that all sorts of institutions have internal disciplinary procedures with different standards of evidence from the criminal justice system. “There’s no suggestion, for instance, that an employer would be unable to take internal disciplinary action against an employee who it had reason to believe had assaulted another employee, or a doctor who the medical licensing board had reason to believe had assaulted a patient,” she says. In such cases, an employee could still be fired even if he or she were acquitted in court. “I don’t see any reason why we would give students a pass when we don’t give anyone else a pass in terms of parallel proceedings.”
Besides, if one is weighing injustice, there are almost certainly far more campus rape victims failing to find redress than there are men unjustly sanctioned. “I see these civil liberties concerns as a distraction from what we should be talking about, which is, first of all, Title IX rights,” Cantalupo says.
Whether you find Cantalupo’s case persuasive will depend, to a large extent, on your theory of justice. In the criminal justice system, most people on the left would fully concur with William Blackstone’s formulation: “It is better that ten guilty persons escape than that one innocent suffer.” Is the same true on college campuses, even though less is at stake for the accused? Or is it worth risking the unjust expulsion of a few innocent men to ensure that a much larger number of victimized women can complete their education in safety?
And what about victims off campus? “I understand the reluctance to want to involve the criminal justice system, but if we’re really going to address this problem, I don’t think there’s any way around it,” says Scott Berkowitz, RAINN’s founder and president. As he points out, “The research on this is that rapists tend to be serial criminals.” Throwing them out of school without contacting the police will just ensure that they find another group of women to prey on.
That, Lisak has argued, has implications for the way these cases are prosecuted. “A [university] judicial board would hardly seem the appropriate venue to deal with a sexual predator,” he wrote in a paper titled “Understanding the Predatory Nature of Sexual Violence.” Yet Lisak, who is organizing a conference about university responses to sexual violence this summer, doesn’t believe the campus system can be eliminated just yet. Instead, he thinks it needs to be professionalized—for example, by having trained campus detectives manage the investigations, something Occidental, which has twice revised its policy since Logan’s case, is moving toward.
“It would be preferable if we had a criminal justice system that was capable of handling these kinds of cases effectively—a system that was widely perceived to be compassionate and respectful of victims who came forward,” Lisak says. Though he knows it sounds utopian, “that’s where we all need to go. And in the meantime, we’re going to have to have a mechanism for dealing with these kinds of cases within universities. If, at the same time, we can acknowledge that this really isn’t the best possible way of dealing with this, we can use that as an impetus to move forward.”