Why Colleges and Universities Need To Stop Pretending They Can Handle Sexual Assault Cases Internally

Past a certain point, institutions lose the benefit of the doubt.

Trigger Warning: Some of the links in this post lead to stories that may be difficult to read and/or include mentions or descriptions of physical/sexual assault and suicide.

Reading these heartbreaking last words of former Amherst student Trey Malone last week, I was reminded of memories from college. I was never the victim of sexual assault, but was close to several people who were, including both women and men. I also had the difficult and confusing experience of being close to someone who was accused of sexual assault in one of those grey area occurrences where both he and the other young man had been drinking.

No matter who you are, if you’re involved in or close to someone who was involved in a sexual assault in any capacity on a college campus it changes your perspective permanently. For me, it changed how I thought about consent and what was desirable when it comes to intimacy. While this post isn’t about rape/sexual assault itself so much as the problem I have with how universities/colleges are approaching specific instances, I will say that it is not just “evil people” who both commit rape/sexual assault and reinforce the cultural norms that allow and even foster it. For a much better critique I recommend Laurie Penny’s article in the Independent.

What was most surprising about my experience at a private liberal arts college was that the administration seemed to be shooting itself in the foot with their internal review process. Look, if we are all being honest here, we have to admit that a good number of sexual assaults/rapes have some grey area involved. Drinking/drugs, dating and previous interactions, individuals’ reputations, these things are unfortunately all dragged into the equation and anyone who tells you it is easy to sort them out is engaging in wishful thinking.

Which is WHY the process for handling sexual assaults/rapes has to be uniform, and has to be handled by independent (as much as is humanly possible) bodies. Obviously local police have not historically been the best trained (something that’s changing, thankfully) when it comes to these cases, but if we’ve got special units to deal with drugs we can certainly provide the same to represent people affected by sexual assault. The fact that many people say the judicial system made them victims twice over is plenty of evidence for that.

But back to the college / university review and disciplinary process. I’m guessing most people involved in adjudicating cases come with good intentions, I certainly saw that in both cases where my friends were sexually assaulted and a friend was accused of sexual assault. But the process was a) largely secret, as mandated by the college’s disciplinary rules and b) investigation was NOT handled by impartial people/committees.

On that first point: I’m told by friends who attended other colleges that this is fairly standard although it is starting to change. In fact, you can sense this problem just by reading Amherst President Biddy Martin’s response to Trey’s suicide note being published. She says:  ”Out of respect for Trey’s privacy and the privacy of his family, the College has not been public about what he experienced at Amherst.” That’s the same sort of attitude that colleges often take (and not necessarily for the benefit of students), and is even spelled out in an indirect way in the Amherst student handbook section on sexual misconduct:

While we recognize that a report may emerge through many sources, we encourage our students to report all sexual harassment and sexual misconduct directly to the Sexual Respect Counselor, Title IX Coordinator or the Dean of Student Conduct. These individuals will support you and provide you with information regarding options, including grievance procedures, interim remedies and ongoing emotional support. These individuals will assist in eliminating the misconduct, preventing its occurrence and addressing the effects.

To be clear, the handbook also says “There is no right or wrong way to respond to an act of sexual misconduct” and encourages students to consider contacting police and/or seeking medical attention. It reads nice, but for anyone who’s ever seen how it plays out on a college/university campus there is something weird about the wording, and actions often associated with that wording.

This eloquent letter by a student who was sexually assaulted on the Amherst campus highlights exactly why the disciplinary system at colleges and universities cannot properly deal with a rape/sexual assault. She points out a few problems with the way the disciplinary hearing was conducted, but what really struck me was when she noted that “a professor from your institution framed a question very insensitively asking if I had just thought what had happened to me was rape because ‘my friend had told me.’ If she also understood what rape is she would know that oftentimes rape is not something you want to think happened to you.”

Reading her letter, I immediately thought of another section of the sexual misconduct code in the Amherst Student Handbook, which states that “The college will take immediate action in all allegations of sexual harassment and misconduct to protect the safety of the community and individuals involved.”

The problem, and something I’ve witnessed firsthand, is that the “safety of the community” often extends beyond considerations of the immediate safety of an individual. In fact, reputations of specific students, departments, student groups, the institution itself, etc… all come into play. Not to mention that the judicial boards and systems of process at educational institutions are constantly changing, so there’s a lack of consistency in the decision making process because the level of understanding about what rape/sexual assault is constantly changes.

I’m not suggesting there’s any easy way to handle these things. Because there simply isn’t. But for colleges and universities to claim that they are making a good faith effort when they are encouraging (and in some cases pushing for) adjudication via their own flawed internal processes/review systems is disingenuous.  They should be focusing their efforts on educating students about consent, and healthy relationships and emotional/physical intimacy on a basic, real level and leave the investigation and judicial action to authorities.

 

This article originally appeared at Trial of the Century.

Photo—zappowbang/Flickr

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About Joe Cardillo

Joe Cardillo is a media professional, DIY musician, and writer in Albuquerque, New Mexico. He believes the point of life is to connect to other people and acknowledge the absurdity/terror/joy of the human condition. You can find him on Twitter @joecardillo and read more of his writing on his blog, trialofthecentury.wordpress.com

Comments

  1. Ok, this is me speaking out of ignorance and I want to be corrected if I’m mistaken.

    If I am a student at a public or private University and I am assaulted, do I *have* to report it to campus officials? Can I not just go to the police (not campus police, but the nearest major city or something)?

    Similarly, if I’m an employee or affiliate of an organization (including, say, a Scout Leader or some such), must I go through the official channels of the organization?

    I say this only because after reading up on the Amherst stuff, I couldn’t help wondering why the police were not involved, only campus officials, counselors, the President, etc.

    Legal-type folks, help me out here.

    • For colleges, I don’t think you have any requirement to notify campus officials. I’m curious to see if anyone knows what the answer is for non-education institutions like Boy Scouts, but I suspect it’s the same.

      What I’ve noticed is that while it’s not required, higher education institutions *prefer* that you go through them. There are all sorts of reasons for this (legal, practical, etc…) and not all of them are nefarious (for ex. colleges may believe they are better equipped to assist students, or in cases where there is some grey area there’s room for “learning from mistakes” without raising the stakes to a felony level, which I think unfortunately raises a whole other set of problems). But, at the end of the day, there is no way for an institution to separate their caring/empathy for students from institutional reputation and other factors that might lead people in the internal disciplinary process to conclude that “it wasn’t really rape if X or Y.”

      It makes me wonder, does anyone really think that rape or sexual assault is accurately defined/handled by these boards? I recall specific instances where friends of mine who were sexually assaulted were asked what their prior relationship was like, or if they had previously had sex with the person who assaulted them, or even “do you normally have sex with someone you’ve only known for a short time?” Because, y’know, these are all reasons why someone was asking for it (*sarcasm*).

      • With Boy Scouts, it is required for adult (volunteer) Scout Leaders to notify the paid Scout officials in the Scouting Office as soon as they become aware of the situation. The police are also to be notified at that time, if they haven’t been already. The problem is then there are 2 investigations going on at the same time. The police want to do their investigation, but the institution (either college or Boy Scouts) legally also need to do an investigation. So now the complainant is being questioned at least twice because the institutions are not allowed to use the information collected from the Police.

  2. Hank Vandenburgh says:

    Part of the issue here is that many of the acts or reported acts that the campus takes action on would either not be prosecutable if they were referred to the criminal justice system, or the prosecution would not be able to win under the rules of evidence. I know of one case where a male student was forced to stay out a semester due to a he said – she said situation. Virtually everyone believed his side.

    I do think that many of the situations reported were real, however.

    • wellokaythen says:

      I think this is a key point. There is behavior that is not illegal or not prosecutable under criminal law, but which ought to get you fired or expelled. Sexual assault is illegal, of course, but there are forms of sexual harassment that are not quite prosecutable in criminal court but require some action nonetheless. In some ways, the criminal justice system has its own limits. The behavior has to be bad enough to cross a particular threshold, while the administration could take steps at a lower threshold.

      I think the best is probably a combination of internal resolution and outside police investigation. Either one by itself is not going to cover the whole range of horrible things people do to each other.

      Notifying the college may not be necessary, but it could be good due diligence in the long term. You may want to tell the school just so that the school is now on the hook to do something about it. (You may need to sue them later over their inability to help you.)

      (Totally amateur legal advice here, from a lifetime of Law & Order re-runs. You get what you pay for.)

      • wellokaythen says:

        P.S. It may be a good idea to tell the school for another reason: this may not be the first or only allegation against that person. It could be your report that pushes the school into doing something. I wish they would do something at the first report, but schools don’t always do so. Your reporting that person could be adding to a very conclusive case already under way against the person.

        • Thanks all, good points made. I guess I was reacting to this idea that some schools have proved themselves, hrm, less than competent at handling these things internally, as this article suggests, and the question in my mind was – why are the schools handling this stuff in the first place?

          As a marketer I can’t help thinking that there can be a conflict of interests at play here. After reading the Amherst accounts, it seemed pretty clear to me that the counselors, President, etc. were very highly concerned about protecting the Amherst brand and reputation of prestige, and this was getting in the way of providing adequate care for victims. (I found the reaction of school officials to the student who said she wanted to drop out of Amherst, after they’d exerted an enormous amount of control over her life by trying to keep her on campus at all costs, particularly telling. “What? No! No one leaves Amherst! (and what went unspoken – Drop outs hurt the school’s reputation!)”

          • @KKZ Absolutely. For those of us who work in media/branding/PR/marketing this is incredibly scary. Are colleges/universities looking out for students? I think they are, but handling sexual assault/rape cases internally lessens that good intent. A student is only at the institution for around 4 years, vs. administrators, faculty etc.. who have a much longer term reason to want to protect the college. I doubt that is ever an explicit reason for downplaying or brushing sexual assault cases under the carpet, but in my experience it’s in play. I’ve seen thoughtful, kind administrators with decades of experience handle things in a way that I couldn’t agree with. Not because they are bad people, but precisely because of the opposite, they couldn’t separate their good intentions from the situation.

      • @wellokaythen I agree that there are lower level things that colleges/universities can and should be responsible for (e.g. sexual harassment) but I have a problem when they encourage students to report sexual assault/rape to them first, and/or put pressure on students to keep it internal. I saw that at my college, I’ve heard it from graduates of other institutions, and it seems to be the case at Amherst.

        When you encourage or pressure students to report within the college disciplinary system vs. reporting to proper local authorities you risk sending a message to both survivors and perpetrators…….and that message is, “is rape really rape?”

        If colleges/universities always reported a sexual assault that fits state/federal definitions to the proper authorities, we wouldn’t be having this conversation. But in practice they regularly do not. I’m not saying there’s no good in higher ed disciplinary systems assisting in sexual assaults/rape cases, but they should not be the arbiters of whether or not it deserves legal status…..e.g. in Trey’s case…. http://www.masslive.com/news/index.ssf/2012/11/the_northwest_district_attorne.html

  3. I don’t think we should expect schools to deal with serious criminal matters like rape and I find the desire to turn them into a branch of the criminal justice system to be misguided. They are there to educate, not prosecute investigate crimes. Taking rape seriously does not mean opening up kangaroo courts on our campuses as is now required under Obama’s ‘Dear Colleague Letter’ that demanded schools reduce the burden of proof to more likely than not. That means if they think the odds of you having done the crime are 50.001% then you are assumed guilty. This isn’t justice and we need to be careful or we risk making our campuses a hostile environment for young men. We are right to feel for rape victims but we must also keep in mind the rights of the accused. False accusations do happen and cases like Duke, and Hofstra prove that. In either of those cases a more likely than not standard along with a unprofessional cursory investigation would have had those young men kicked out of school for a crime the did not commit.

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