For every horrible narrative about a rape on a college campus, there's a question: why is the college involved with this at all? Why are librarians and professors and students adjudicating questions about consent that are usually left to courts?
Jon Krakauer's Missoula: Rape and the Justice System in a College Town, released today, offers a powerful counterargument: given their track record on sexual assault, courts can't be trusted either.
Krakauer's book, according to early reviews, describes in detail several rape cases in Missoula, Montana, in recent years. But the choice of location means those cases aren't just the latest addition to a collection of horrible narratives about campus sexual assault. They were part of the foundation for an ambitious overhaul from the Obama administration of how universities and local police should deal with it.
Both the campus and the courts fell short in the Missoula cases — making it clear that there are no simple solutions.
How the University of Montana became a blueprint for handling campus sexual assault
In 2012, the Education Department and Justice Department launched investigations into the campus, the local police, the campus police, and the county attorney in Missoula, saying the town had 80 rapes in three years, including 11 involving students at the University of Montana.
It's not clear why the government chose to make an example out of Missoula. Those statistics sound horrifying, but they're fairly typical for a town and campus of its size. At the time, Attorney General Eric Holder said the allegations that reports of rape were mishandled was "disturbing." The university had already conducted a special investigation of its own into sexual assault on campus, cataloguing nine assaults in 14 months.
The report on the University of Montana found that students were retaliated against for reporting sexual assault, and that the university didn't react to that retaliation. It found that students who reported sexual assault weren't always given options for avoiding the students who they said assaulted them. Some of the women dropped out of school rather than stay in class with their alleged attackers.
The college reached an agreement with the federal government to change its policies, and the agreement was described as a "blueprint" for what other universities should do.
Part of the guidance was echoed in a letter to university officials nationwide in April 2011. Like that letter, the Montana agreement called for the university to use the "preponderance of the evidence" standard when determining whether a student is guilty of sexual assault — meaning that they only need to be 51 percent certain to find someone responsible. It also defined sexual harassment as including verbal harassment, controversial because some groups argue that this infringes on students' freedom of speech.
As more colleges have adopted these policies, concern has grown that they're not doing enough to protect students accused of sexual assault and that campus justice systems have become a rush to judgment. Nancy Gertner, a Harvard Law professor, wrote in the American Prospect that her university's procedure for evaluating sexual assault "does not remotely resemble any fair decision-making process with which any of us were familiar."
In a nine-part series for Slate in December, Emily Yoffe described it as an "overcorrection" and said that "adjudicating rape is not the job of college administrators but of law enforcement."
Why Missoula's court system is a cautionary tale
The idea that police and prosecutors should handle these accusations, not colleges, is gaining currency. State legislators have written bills to require universities to report to local authorities when they learn a sexual assault has been committed.
Victims' advocates are concerned that this will prevent people from coming forward — and the Department of Justice investigation of the Missoula court system and police suggest those concerns are real.
Krakauer's book describes a prosecutor whose sympathies appear to lie with the accused rather than with the alleged victims, and who eventually becomes a defense attorney for a student accused of sexual assault.
While parts of the police investigation were "quite good," the investigation of the police department found, the police were far from sensitive in their treatment of victims:
In one case, an MPD detective told a woman that the gang rape she was reporting "was probably just a drunken night and a mistake," and repeatedly asked whether she had said "no" to her assailants, The detective also asked the woman to describe in detail, and then to reenact, how she had said "no," and "I don't want to,"to her assailant, and then told her that it "was kind of quiet" and "c[a]me across as kinda [sic] passive."
The Department of Justice report found the Missoula prosecutor's office assigned a low priority to sexual assaults, failed to adequately train its staff, and was disrespectful toward victims, particularly those who said they were raped by acquaintances, not strangers. In one case, a deputy county attorney "quoted religious passages to a woman who had reported a sexual assault," making the woman think the attorney was judging her. One woman who was gang-raped as a University of Montana student said she felt re-victimized by the prosecutor's office and discouraged others from reporting their assaults.
The prosecutor's office also declined to prosecute "nearly every case" of an adult woman being sexually assaulted by someone she knew while under the influence of drugs and alcohol — which describes the majority of campus sexual assaults.
The report on the university's procedures isn't encouraging; neither is the allegation that colleges now go too far in trampling on the rights of the accused. But the reports on the local courts and police are even more damning.
This isn't limited to Missoula, and it seems to be a problem particularly when cases involve student athletes as the alleged rapists. As Amanda Hess noted at Slate, the New York Times's investigation of sexual assault at Florida State University found that police weren't exactly springing to victims' aid: "Florida State students are already calling the police, but the police aren't investigating."
It's not supposed to be just campus or courts, but both
If Krakauer's book succeeds, it will be by drawing attention to the idea that solving campus sexual assault requires both colleges and the towns they're located in to better grapple with the issue and respond to victims.
Colleges are going to continue to be involved in these cases: they're legally required to under Title IX, which prohibits gender discrimination in education, including sexual harassment and assault. That means even if cases are more frequently referred to police, colleges will still have to figure out how to assign responsibility and deal with the issue on campus.
That doesn't mean colleges should be the only entity involved. Making sexual assault a civil rights violation doesn't mean it's not a crime. It still is, and should be prosecuted like one. But that requires a court system that takes it seriously — and the Missoula reports make clear that for all the flaws in the university's response, it at least attempted to do that.
There's no reason to believe Missoula's police and prosecutors are unique. And while taking serious decisions about sexual consent out of the hands of colleges entirely is tempting, what happened in Montana suggests it would only make matters worse.