The more horrific stories you hear of college sexual assault going unpunished — or wrongly punished — the easier it is to wonder: why are colleges handling this issue in the first place? Shouldn't they just leave it to the police?
"To punish the alleged perpetrators of sexual violence, colleges have put in place systems that are heavy-handed and unfair," Emily Yoffe argued in Slate this week, calling campus judicial systems "Soviet-style show trials."
Colleges' involvement in sexual assault cases isn't intuitive. If a murder happens on campus, it's handled by the police and local courts. So why not handle rape the same way, rather than dealing with it on-campus, as if it's an academic matter rather than a violent crime?
There are two reasons why colleges are involved with campus rape and sexual assault, and why they're likely to stay that way. The first is that it's the law: Title IX, passed in 1972, requires colleges to protect students from sexual assault.
The second is that college involvement is often what victims of sexual assault want and need more than a police investigation — and that's why advocates are skeptical of proposals that would throw these cases to the justice system.
Title IX requires colleges to protect students from sexual assault
In the eyes of federal law, a sexual assault committed on campus isn't just a criminal act against one person. It's also a violation of women's civil rights at that college.
Title IX, passed in 1972, guarantees equal access to educational opportunity for men and women. Its most visible impact has been on athletics: men and women now have to have equal opportunity to participate in sports. But beginning in 1977, Catharine MacKinnon, a trailblazing feminist lawyer, argued that sexual harassment is a form of discrimination because it interferes with a woman's right to an education. In Alexander v. Yale, MacKinnon represented five female students who said that harassment from coaches, fellow students, and professors — one of whom allegedly asked for sexual favors in return for a good grade — interfered with their right to an education.
The women lost in court in 1980. But the court upheld the underlying principle: that sexual harassment and sexual violence interfere with women's opportunities in education.
Since then, colleges have had a legal responsibility to conduct an inquiry and take action when a student experiences sexual violence. And they have to do it even if students don't make a formal complaint. If it's widely known on campus that sexual assault is part of a fraternity initiation, for example, the college has a responsibility to investigate even if no one comes forward with reports.
Although Title IX was written to ensure women's equality of opportunity in education, colleges are responsible for taking action against all sexual violence regardless of the gender of students involved.
Referring the issue to the police doesn't mean that colleges are off the hook. They still have to conduct their own investigation, and mete out appropriate penalties, even if the police are also investigating.
Colleges can do things to help victims that criminal courts can't
Imagine a college sexual assault case that is reported to authorities — both to local police and to campus officials. On campus, the investigation takes around 60 days, according to the Education Department's Office for Civil Rights. In the local justice system, it can drag on even longer. In the meantime, the student who filed the complaint might have to sit next to the student she accused in class or run into him in the dining hall. A victim of sexual assault might fail a class or want to take part of the semester off.
Police departments can't do anything about any of this. But colleges can. They can shift students' housing assignments, campus jobs, or class schedules. They can offer free counseling services. They can give students who say they were assaulted a break from a midterm exam, or let them retake classes that they failed because they were emotionally upset in the aftermath of an assault. And they can do these things immediately, before a hearing or even an investigation is concluded.
That's one reason why colleges have a role to play when sexual assault happens on campus. Colleges can, and are supposed to, take those actions even if the police are already investigating.
But there's another reason why survivors of sexual assault often want their colleges to mete out justice: either they don't want local police and courts involved, or they don't trust that they will be able to help them.
Studies on campus rape are limited. The best-known was a survey of students at two large Midwestern public universities, which is difficult to generalize to the broader population. They found the majority of cases of campus rape involve people who already knew each other, and who in some cases had dated or slept together. Most cases also involved at least one person drinking alcohol.
This can make victims less likely to describe what happened to them as rape. Nearly half of women who had been sexually penetrated against their will said, in one study of campus sexual violence, that they didn't classify the experience as rape — perhaps because they did not want to consider an acquaintance a rapist, the researchers speculated, or because they blamed themselves for what happened. Separate research has confirmed this finding.
But even when women are hesitant to accuse an acquaintance of rape, they might want something done. That's one reason why sexual assaults are more commonly reported to colleges, where the repercussions are less severe, than to the police.
Cops and courts don't have a stellar record on bringing campus sex offenders to justice
When sexual assaults are reported to the police, the arrest and conviction rate is dismal. A Chicago Tribune study of 171 reported campus sex crimes between 2005 and 2011 found only 12 ended with arrests. Just one student accused of attacking another student was convicted.
"Traditional law enforcement is still befuddled about how to handle situations where the victim and the perpetrator know each other, which is the vast majority of rapes on a college campus," says Lisa Maatz, the top public policy adviser for the American Association of University Women. "Instead of just doing better in terms of better training and better research into understanding how this problem works, they decide not to pursue the cases."
Some cases are dropped because victims don't want to cooperate, fearing the publicity of a trial. This fear of publicity is also a major reason that many don't want to tell police. In the 2007 study, 42 percent of sexual assault victims who didn't report the crime said it was because they "didn't want anyone to know."
And even when victims cooperate, acquaintance rape cases have a reputation as difficult to prosecute. A 2004 study of rapes in Philadelphia and Kansas City found that in acquaintance rapes the victim's character and behavior, such as whether she had been drinking or whether she had invited the man into her house, affected prosecutors' decisions about bringing charges.
Campuses, on the other hand, need less evidence than criminal courts to find someone guilty of sexual assault: they can determine a student is guilty if it is more likely than not that student committed the assault. Maatz says this is appropriate: a criminal court can lock someone up in prison, while a college can only suspend them.
So Maatz and others are suspicious of laws that would make reporting campus rape to the police mandatory. They fear that mandatory reporting will discourage students who don't want the police involved.
"There is absolutely no guarantee they’re going to be treated well in the criminal justice system," Maatz says.
On the other hand, just because many local police and prosecutors have a dismal record on campus sex crimes doesn't mean the issue should be taken out of their hands. Sexual assault in college isn't the only crime that is underreported or clumsily dealt with, but it's the only one where survivors of violence have the option of dealing with it outside of traditional law-enforcement channels.
A parallel effort that began in Ashland, Oregon, is underway to improve police departments' response to campus sexual assault. Called You Have Options, the program focuses on what survivors want out of the investigation. Since the program began, the number of sexual assaults reported to the police has doubled.
Paradoxically, this is seen as progress: it means more survivors are coming forward, and that they're confident that a system outside of their college campus can offer them justice.