Tuesday, June 19, 2018

Perspective: What colleges should do about campus rape

Can universities handle their role as independent investigators and adjudicators of sexual assault? You may conclude that the answer is no after reading a big story in the New York Times about the aftermath of an alleged assault at Hobart and William Smith Colleges in New York. It's called "Reporting Rape, and Wishing She Hadn't" because from the point of view of Anna, the student who says she was victimized, her school did almost everything wrong.

Anna, in her first weeks of college last September, reported being assaulted by two football players in a room at a frat party, where they'd all been drinking. A friend of hers (also a football player) said he later saw one of the men rape her while she was bent over a pool table in a dance hall, while a handful of other students looked on and laughed. Anna's blood alcohol level tested at twice what counts as legally drunk and a rape exam showed "blunt force trauma" from repeated intercourse.

Hobart and William Smith cleared the football players in just 12 days. The New York Times got the transcript of the hearing held by a three-member panel, and it does not inspire confidence. No students were allowed to bring lawyers or family members, just "advisers" who weren't allowed to talk. Panelists misrepresented evidence — for example, saying that a friend of Anna's had said Anna wanted to go upstairs and have sex, when she'd actually said one of the football players wanted to have sex.

Two of three panelists didn't look at her medical records. One asked if her friend, the witness, "had seen the player's penis in Anna's vagina." Both accused players changed their stories in significant ways before the hearing. Neither had to explain the discrepancies.

What a disappointing, dismaying mess. And yet, I'm not ready to give up on the whole university adjudication system.

People ask me all the time why universities have any responsibility for dealing with rape accusations in the first place. These are serious allegations. Shouldn't they be in the hands of police, prosecutors, and judges? The answer is that there are supposed to be two parallel tracks. It's not either/or. In passing and enforcing Title IX, the federal law that's a shield against sex discrimination in an educational setting, Congress gave schools an independent obligation to investigate allegations of sexual assault and harassment. That doesn't mean that there shouldn't also be a police investigation.

Stories like Anna's make the schools look at best bumbling and insensitive, and at worst like craven slaves to their own images and, too often, their athletic departments. I should also say that male students have complained of being falsely accused, railroaded by school judicial procedures, and unjustly expelled.

Still, before we give up on colleges, Congress and the Education Department, which oversees Title IX, should demand transparency. We hear horror stories about individual cases but we don't have the data to know what's happening across the board.

Federal privacy law protects records of individual students. But schools can respect privacy and still disclose much more about how their judicial procedures play out. Stanford law professor Michele Dauber, who helped design an alternative response procedure her university has put in place for sexual assault complaints, sent me a great outline, below, for the data schools should report and don't. (She worked on this with former Education Department official Martha Kanter.)

1. Clery Act Reports (campus crime statistics already collected).

2. Number of formal complaints made to the campus disciplinary officer.

3. Number of hearings held.

4. Number of findings of responsibility.

5. Informal resolutions (diversions/plea bargains).

6. Median number of days from complaint to hearing.

7. Median number of days from complaint to informal resolution.

8. Sanctions issued after hearing (suspension/expulsion/other).

9. Sanction issued after informal resolution.

Dauber and Kanter have three goals: creating pressure for reform, identifying schools with disciplinary programs that students actually use, to find the best practices and comparing schools by the key metrics. "This should all be publicly reported, available online by school," Dauber says.

These recommendations would help address problems highlighted by Missouri Sen. Claire McCaskill's recent report, based on a national survey of more than 300 schools. In it, the officials responsible for law enforcement at 30 percent of schools say they have no training in handling sexual assault reports. More than 20 percent of schools still let their athletic departments supervise investigations that involve athletes. More than 40 percent haven't investigated any cases of sexual assault in the past five years.

This probably doesn't mean there's nothing to investigate. It's far more likely that the schools have their heads in the sand or have disciplinary procedures in place that students don't want to use. Let's find out which schools those are, not in sporadic news coverage that depends on students coming forward, but comprehensively and systematically.

Last month, Washington Post columnist George Will fed his conservative base by arguing that schools are making "victimhood a coveted status." Anna's story shows how far that was from the truth at Hobart and William Smith. And it's an impetus to know much more about what's happening everywhere else.

Emily Bazelon is the Truman Capote Fellow at Yale Law School. She is the author of "Sticks and Stones."

© 2014 Slate

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