President Obama has undertaken a much needed initiative to focus public attention on the epidemic problem of acts of rape/sexual assault occurring between students at the nation's colleges. It is certainly not a problem that is limited to colleges, but there are several good reasons for some specific focus on this population. The president has also undertaken an initiative to focus on the same problem in the US military.
A person (about 9% of rape victims are boys or men) who is a victim of rape typically confronts a daunting landscape in any quest for protection and justice. There are multiple reasons why about 60% of rape victims decide not to report the incident to any investigatory authorities. The general perception is that on top of an already traumatic experience they would then face a highly stressful experience with very poor prospects of achieving resolution.
If you heard President Barack Obama speak last month about the epidemic of rape on college campuses, chances are it was the first you learned of it. And that's a big part of the problem: Too often, on too many campuses -- even in California -- sexual assaults and harassment are swept under the rug and victims are denied the pursuit of justice.Colleges have a rather complex mixture of powers and responsibilities under federal and state laws. They have their own internal administrative procedures for dealing with student discipline. These deal with a broad range of situations that range from violations of college rules that are not criminal in nature to acts that are potentially punishable as felonies in criminal court. Colleges also have a campus security force. In most states some members of that force are legally certified as sworn peace officers and they have investigative jurisdiction over potentially criminal incidents that occur on campus property. With a complaint about a rape that occurred on campus they would typically conduct the investigation instead of the municipal police force. That is not always the case but it is fairly typical.
But courageous students lately are speaking out, filing federal complaints and demanding changes in how campuses handle these cases. Obama has given a federal task force three months to figure out what colleges and the government should do.
Under Title IX of the Educational Amendments of 1972 the federal government has powers to set requirements for colleges that receive federal funds in terms of a broad range of issues relating to sex discrimination. These range from athletic programs to problems in dealing with sexual harassment and assault.
Conduct More Than Just a Police InvestigationThis dual track process tends to create considerable confusion in a highly controversial matter. Colleges are required to report statistics on violent incidents on campus and in the immediate environment. They have an incentive to minimize this reporting since the impression of a violent environment does not reflect favorably on their reputation. In many instances there is an effort to deal with rape complaints exclusively in terms of the internal administrative process. In California there is a bill pending in the legislature that would require all colleges to refer all complaints of violent crime for formal investigation unless the victim specifically request that the matter be handled administratively.
When institution officials become aware of possible harassment, their first obligation is to investigate the information, whether the victim or a third party brought it to their attention. Institutions are expected to coordinate their law enforcement and Title IX responses to such complaints.
While a school resource officer or campus police officer may conduct a law enforcement investigation, "because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX," writes Russlynn Ali, the assistant secretary for civil rights at the U.S. Department of Education and head of OCR. This means that when a sexual assault is reported to campus law enforcement, in addition to conducting a law enforcement investigation, the department should "notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint, and...report incidents of sexual violence to the Title IX coordinator if the complainant consents."
Use the Preponderance of Evidence Standard
A school will not meet its Title IX obligations solely by conducting a law enforcement investigation because conduct "may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation." For example, the new guidance makes it clear that institutions must resolve Title IX disciplinary matters using the "preponderance of the evidence" standard (meaning it is more likely than not that sexual harassment or violence occurred). Disciplinary procedures should not use the higher "beyond a reasonable doubt" standard required in criminal proceedings or the intermediate "clear and convincing" standard (meaning it is highly probable or reasonably certain that the sexual harassment or violence occurred).
There is also focus on trying to establish clearer standards for how colleges deal with sexual harassment/assault complaints in their administrative disciplinary process.
At UC Berkeley, student sex offenders go through the same disciplinary process as those caught cheating on an exam, their punishment -- sometimes as light as a warning and an essay -- decided in informal talks with the university.In contrast Stanford has made recent efforts to institute procedures that attempt to provide greater protection for victim rights.
Campus assault victims often turn to their colleges for justice in addition to -- or instead of -- going to the police. However, Cal held a formal hearing for just one of the 32 student sexual misconduct cases it investigated from 2011 to 2013, according to information obtained by this newspaper.
Today, after private interviews, each student testifies to a panel; the other student, though not present, can listen by phone and email questions to the reviewers. The case must be resolved within 60 days, and either side can appeal the outcome to Student Affairs.Many people think that for college students who are rape victims an investigation of the complaint should be exclusively handled as a criminal investigation. There are other issues that need to be handled while an investigation is in progress. Arrangements may need to be made to protect the victim from having to confront the accused rapist in the course of daily activities. The college needs to make a determination whether someone accused of violent crime poses a safety risk to other students.
In the first three years Stanford tested the new procedure, 11 of 53 assault victims came forward to have their cases heard, Dauber said. In the previous 12 years, only four of 175 did so.
There are no simple and quick means of changing the rape culture that continues to be embedded in the institutions of our society. People who want to work for change must deal with the details of complex laws and regulations.