colleges and sexual assault
Consider the following fictional story: Let’s say that I was sexually assaulted as I walked around my hometown of Cape May, New Jersey. I found out that the perpetrator was employed at Google in California, where I also held a job and worked with that person. Upon returning to California, I decide to file a complaint with Google about the sexual assault.
What is your response to this story? I’ll tell you mine. I think that it would be unwise to assume that Google has any responsibility to conduct a criminal investigation. Google is not a police department, does not have the resources to investigate, nor has it been invested with the responsibility insure the personal safety of the citizens of California or New Jersey.
The primary purpose of informing Google would be to tell them that they have a dangerous person at work and they should take all precautions to ensure employee safety. If an employee has been accused of a violent offense, then they should be given leave while the issue is investigated by the police. Or, they could work in a capacity that will not endanger other employees until the employee has been cleared of wrong doing. Google also has the responsibility to call the police. Any citizen has the moral duty to call the appropriate authorities if there is a reasonable suspicion that someone is violent. An accusation of assault would in normal circumstances be a reasonable cause. We don’t assume that a special Google court will punish sexual offenders using special Google rules. That’s why we have the police and state law.
Now, all this reasoning immediately disappears when it comes to college student crime. Even though most college students are adults, we ask that universities shoulder the burden of investigating and punishing sexual offenders. For example, Slate recently recounted the story of a young woman who was sexually assaulted in Alaska, allegedly, by a fellow Stanford student. She then filed a complaint at her university. The story also discusses the difficulty that colleges have in getting people to file sexual misconduct complaints.
But this, I believe, misses the point. PhD’s are not police officers or prosecutors. Stanford, and other schools, have duty to provide a safe environment for women students, but they aren’t district attorney offices. The insistence that colleges punish sexual offenders likely stems from the in loco parentis doctrine that gives colleges a strong role in student discipline. It’s time to abandon that belief, treat adults as adults, and shift the burden of public safety to police departments. It’s their job to protect women, including college students, and we should insist that they do it on our campuses.
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I am not sure that this is the root of the problem. Of course, there is sexual menacing and sexual assault. If sexual assault occurs, a report should be filed, detectives should investigate and the DA should prosecute if there are grounds. BUT, the pervasive reality is false accusation, labeling, and out-group exclusion where some social or demographic difference or perceived difference in sexual orientation leads to social conditions where some people call other people paedophiles, whores, faggots, etc based upon no evidence whatsoever. This is part of the pervasive social conflicts that occur in contested places.
To reiterate, sexual assault occurs and should be reported, investigated, and prosecuted. BUT, there is also harassment of people by name-calling and labeling. This is not some adolescent phenomenon; aged adults lead the way by controlling cultural contexts through labeling others with degrading terms. The emotional expressions related to difference get translated into degrading sexual stereotypes because of their extreme narrow-mindedness.
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Fredrick Welfare
June 13, 2014 at 2:38 am
Interestingly when it comes to violent crimes, Fabio pleads for a shift of (higher) education to a private firm (Google), which has Limited enforcement capacity, but also Limited leeway on addressing abusers (either suspended or fired). What about comparing universities instead to institutions such as, e.g., army or hospitals? The debate on sexual assaults on campuses reflects different understandings on the functions of education: while it might be more efficient to rely completely on police, this takes away some of the functions of academia – not least the belief that the more educated, the better a person as a Citizen (hence not a sexual offender).
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Tatiana Fumasoli
June 13, 2014 at 3:45 am
Universities have arrogated to themselves the right to have private justice for their students and faculty since first ones were founded, all the way back in the early Middle Ages. Originally colleges and universities were ecclesiastical institutions, not merely in that they were run by the Church (they weren’t, though they were endowed by it), but that basically all students were clergy in minor orders. And clergy were not subject to secular authority, they were subject to Canon Law. The Church was reliably jealous about that prerogative. So it was absolutely the case that when a bunch of 18yo undergraduate inebriates got in trouble in the local establishment of ill repute, the local constabulary couldn’t haul them in front of a magistrate, but had to turn them over to the Church’s authority. A huge amount of town/gown hostility was rooted in the fact that university students effectively could commit crimes with impunity, because the university got away with insisting on private justice for its students.
The may sound like ancient history to you, but there is still a fundamental mindset in university administrators, that they are entitled to have private justice within their walls. It is typically universities’ administrators which are the ones eager for students to come to them with their complaints, rather than to external law enforcement — as a number of recent scandals have revealed. The rationalization has historically been to protect students from their youthful folly, but a substantial benefit to the school is to allow the school to conceal campus crime that would deter admissions or donations. Meanwhile, I’ve heard it claimed that many host communities prefer that the university handle its own students, and students who report crimes to the local law enforcement sometimes just find themselves referred back to the university’s systems; the alleged benefit is that this can keep the crime records for the community low, because crimes handled by the university don’t appear on the police blotter or otherwise in the public record.
In light of cases coming out in the last year of university administrators having discouraged rape victims from reporting their assaults to law enforcement or deceiving or threatening victims to deter them from doing so, it seems very odd to me that you would be criticizing “us” from having expectations of universities. It is the universities which themselves have this expectation, and which have fought to maintain the ancient prerogative of private justice for themselves.
As to whether it should be this way or not, I do not know and have no opinion yet. But it seems important to me to understand who the actors are. Universities have worked very hard to keep this problem for themselves. It is not being thrust upon them.
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minder
June 13, 2014 at 6:18 am
I really want to agree with you here. But I think there are several good reasons why we won’t see colleges handing over this power to the police, and maybe some reasons why they shouldn’t.
1) Most college students break the law every weekend when they drink. It’s hard to know whether they would be a heightened police presence on college campuses if colleges gave up on enforcing rules themselves, but I think most college students would prefer to be caught drinking by their college (where their infractions are kept private by the Educational Records act) than be a matter of public record.
Right now, college judicial boards are a means of protecting students who experiment with alcohol (and in the process, sometimes do stupid things), from experiencing legal consequences for their actions. This is probably good for students.
2) Colleges have far more power over the lives of students than do most employers because students both live and work on campus. Let’s say colleges implement your proposal: suspected sexual offenders are turned over to the police. What happens when such an offender is placed on your dormitory hall at the beginning of sophomore year? Or is assigned to be your roommate?
We’re left with a few options: force students to stay put (since suspect is innocent until proven guilty), automatically allow students to move (which would just put a newer, potentially less vocal person in their place) or adjudicate the case to see if the suspect is guilty and then find a remedy. Adjudicating the claim internally seems like the most logical choice to me. But of course, then you’re back to the status quo.
3) Colleges are uncommonly large communities, and communities always self-police. If I lived in a group house or an intentional community and someone inside the house was accused of some bad deed, we would evaluate the accusation and remedy it. Colleges are also communities in that they have high exit costs and benefit from a tremendous amount of social trust amongst the participants. At google, it’s relatively easy to move to a new job, and you won’t lose your social network if you decide you’d rather change jobs than ever chance running into the person that assaulted you again. But switching from one college to another entails higher costs that young people are unlikely to want to bear.
Sadly, students are just too locked into their college to leave these things only to the police. So their stuck with setting up their own crappy criminal justice systems and trying to deal with these things themselves.
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Brad Spahn
June 13, 2014 at 6:59 am
Under Federal legislation — Title IX — our publicly supported university (and all others where federal financial aid is distributed) must have a Title IX coordinator who collects information on sexual harassment and sexual assault and connects with local law enforcement. Two months ago, our system president made all employees manadory reporters to the Title IX coordinator. That office will have a full-time investigator so that our university feels it is doing all it can to protect members of our community. But do not mistake this for the University following private justice or punishing offenders. Those of you who think internal investigations by PhDs in monk’s cowls is the real state of American university legal responsibility are sadly out of date. We must engage the police and district attorney’s office for any complaint or third-party report. And we must publish documents annually tgat report the number and types of crimes reported. Maybe Google is not required to act on sexual assault complaints, but universities are.
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Randy
June 13, 2014 at 8:44 am
Fabio, I agree with you- I believe sexual assault cases are best handled by authorities not connected to the university. But I think the issue is more complicated than your post makes it appear- as all of the comments have made clear. And I’m not convinced that colleges and universities see many incentives to giving up the “burden” of handling sexual assault cases.
Randy is correct, technically speaking colleges and universities don’t necessarily have total control over sexual assault cases. Title IX does require colleges and universities that receive public support to report *reported* cases of sexual assault. But there are currently 55 institutes of higher education under investigation for *not* reporting according to title IX guidelines, and several universities have been accused of discouraging reports of sexual assault (if they’re not reported to the university, the university does not have to report them- incentive for the university to discourage student reporting).
There is nothing (legally speaking) stopping a victim of sexual assault from notifying the local police in place of campus safety. But I can imagine reasons why students don’t go straight to the police. If the victim was drinking and was underage I can imagine that they may feel disinclined to report the assault. And as a woman who has spent many years enrolled as a student at a few different institutes of higher learning, I can assure you that the message received by students is “contact campus safety”, not “call the police”. In fact, this is the message I received regarding *any* potential crime or dangerous situation- even if it happened *off* campus. While participating in a campus-wide volunteer event in which students went out into the community to do service, I received a form that instructed me to call campus safety in the case of an emergency. Granted, I do not know if this form was created by the student group organizing the event or the administration, but either way the message was being disseminated. If the form was created by students without institutional oversight, that tells me that students have internalized the idea that the university is there to protect and help them, regardless of where they are.
All of this to say, I think that rather saying that universities *shouldn’t* handle cases of assault, I think the message should be “just report” – report it to the police if you feel comfortable doing so (and students should know that it’s their right to go to the ‘real’ police). Report it to the campus police if you don’t feel comfortable going to the police directly. There will still be unreported cases. There will be mishandled cases. But it could be a step in the right direction.
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Melissa
June 13, 2014 at 3:18 pm
The argument that universities are not law enforcement is a red herring. Most every organization maintains a code of behavior (whether implicit or explicit) it uses to proscribe certain behavior and enforce the rules. Any HR professional will tell you how fraught the process of enforcement can be because of the legal consequences of organizational punishment, but the fact remains that organizations all do and often times are legally required to pursue their own form of internal accountability. Even if an employee murders someone and the organization tells the police, the organization must still decide whether to allow that person to come back to the office. So, whether it’s cheating, harassment, or sexual violence; universities, like all other organizations, must and will hold it’s members accountable for the good of the organization and safety of its members. The real debate is how those policies get carried out. To that, I’ll add the one thing I believe will help the most.
There should be a victim’s advocacy professional on staff, connected with campus counseling and police resources, who’s not beholden to the university. In my experience, the most difficult part of post-victimization decision-making is understanding your options and having people you can count on help you sort them out in a safe and re-empowering way. And note, victim advocacy should not be limited to sexual victimization. Maybe that’s what the Title IX advocate is supposed to be, but as a form of legal compliance office, I worry it would posses the same incentives towards institutional protection that limit the dean of students position.
p.s. mandatory reporting dis-empowers victims when every source of adult advice on campus is one. Anyone have thoughts on whether it’s worth the gain to reporting?
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jsradford
June 13, 2014 at 3:37 pm
In case you have not gotten the memo, my campus’s reading of the Clery act makes EVERY professor campus security authority who will be mandated to take sexual assault reporting training. The key phrase is anyone who supervises a student employee. This includes professors who supervise TAs or RAs, as well as professors who supervised undergraduate employees. Am I happy about this? No. But it is easier just to tell every professor they are now a CSA than it is to keep track of who is or isn’t.
As the comments thread has suggested, the problem has been that campuses have obstructed the investigation and prosecution of assaults on campus and the point of the law is to require campuses to report crimes to authorities, not to investigate and prosecute on their own. I am pleased to note that my campus is NOT on the list of schools that are in trouble for this, and I have been involved in a couple off instances of sexual assault reporting lately that convinced me that our procedures in place are pretty good. They do involve the city police as well as campus police.
I’m not an expert in this, but I did have occasion via a student’s paper to read a fairly comprehensive review of the literature on the issue of false reports. I think the best estimate is about 8%, pretty much the same as it is for other crimes. Yes, people do file false reports of non-sexual assault, burglary, robbery and theft. It is possible to provide due process to the accused while protecting victims if you are willing to take the matter seriously from the beginning and not be dismissive of either party until you’ve done a thorough investigation.s
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olderwoman
June 13, 2014 at 5:48 pm
One problem is when campus police are also real police, sworn to uphold the law but working for the provost. This is why some of us futilely objected to deputization of campus police.
In principal we could have state authorities prosecute but colleges could have their own threshold as well. Such as, if you’re indicted or even just arrested we’ll suspend you. Other organizations do that.
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Philip N. Cohen
June 14, 2014 at 2:51 am
The problem is that if schools leave it to the police (1) students won’t go and (2) if they do, it takes a very long time to adjudicate. In the meantime, it’s the victim — disproportionately women and almost always telling the truth — who see their grades drop, who maybe drop out of school or take a leave, who suffer even greater emotional trauma by having to see their rapist in the quad, at the cafeteria, in classes (maybe her own), and in residence halls (maybe down the hall). In other words, leaving it to the police is not a neutral choice. It’s a choice that privileges perpetrators over survivors. Schools have to intervene quickly and make the campus a safe place for the women who report these crimes, otherwise they’re not providing an equal opportunity for education to both men and women and that’s a violation of Title IX.
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Lisa Wade, PhD
June 14, 2014 at 7:57 am
What Lisa Wade said.
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cwalken
June 14, 2014 at 6:02 pm
The similarity between the arguments of Lisa Wade and other so-called anti-rape activists in favor of circumventing due process in the case of sexual assaults on college campuses and the arguments used by those promoting lynching black men accused of raping white women is striking. For example, taking the women’s word as the truth, that swift action is needed in the name of justice and to guarantee women’s safety, that the formal legal system and due process are too ineffective and causes women further suffering. Another similarity, not in Wade’s post above though, is vilification of people with different point of view. A more in-depth study using a moral panic framework and comparing the southern myth of the black rapist a hundred years ago with the present-day campus rape discourse would be interesting .
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guest
June 14, 2014 at 8:04 pm
Any system in which people are innocent until proven guilty “privileges perpetrators over survivors.” I think the question is: under a veil of ignorance, would you rather live in a system where people are assumed innocent or would you rather live in some other system. Without that veil of ignorance, it will be relatively easy to find women who will support a system in which only men must risk being falsely convicted. It would also be relatively easy to find men who will support a system in which only women must risk being falsely convicted.
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Chris M
June 17, 2014 at 3:07 am
The rate of false accusation is roughly the same for all crimes. So I’m gathering some of our commentators are (if I’m following the arguments correctly) opposed to arresting anybody for any crime on the grounds that taking someone into custody entails punishing them before due process has established their guilt. Right? So you oppose all pre-trial detention for all crimes? Do you know enough about the US criminal justice system to recognize what a radical change this would entail? And if you consider that reputational damage happens with the accusation itself (that is your argument), the implication is that nobody should ever be charged with any crime on the grounds that the accusation itself harms the accused unfairly when the accusation is false. Do you oppose providing services to families of murder victims or burglary or robbery victims on the grounds that a certain percentage of alleged perpetrators are false accused? (And,yes, check it out, false accusations for these crimes are about as common as for rape. Not zero, but a relatively small minority of cases.)
And as I said, I’m in favor of due process; false accusations do exist. But let’s have some even-handed consideration of the issue if we are going to raise it. Or is it only lower income and/or Black people who should be punished before due process, not White college students?
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olderwoman
June 17, 2014 at 10:44 am
olderwoman, does your student’s lit review include any studies specifically addressing the rate of false accusations regarding sexual assaults on college campuses? Given what I know about crime reporting, I’d be surprised if the rate of false accusations for that type of sexual assault is the same as for sexual assaults of women by strangers outdoors (of course, they are not mutually exclusive categories, but it appears to me that sexual assaults on college campuses to a great extent involve parties previous acquainted with each other).
I don’t think anybody in this thread is arguing that “nobody should ever be charged with any crime on the grounds that the accusation itself harms the accused unfairly when the accusation is false.” The problem with universities way of handling accusations of sexual assault is that they hand out punishments on the basis of the accusation alone in cases where no formal charges are brought upon the accused and even in cases where charges are made but dropped or dismissed in trial.
And I am not sure statements like “Do you oppose providing services to families of murder victims or burglary or robbery victims…” and “Or is it only lower income and/or Black people who should be punished before due process, not White college students?” make for very even-handed considerations of the issues at stake. They are on the same level as death-penalty proponents’ arguments going “But imagine if it was your daughter who had been raped and murdered, wouldn’t you want to see the criminal properly punished.”
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Anonymous
June 17, 2014 at 6:56 pm