Making it harder to punish campus rapists won't help stop campus rape

August 11, 2015 by JILL FILIPOVIC, The Washington Post /

It might be time for sorority women to call it quits on the "sisterhood."

A bill was introduced in Congress last month that would bar colleges and universities from punishing alleged sexual assailants, unless victims of sexual violence report the assault to police. Anti-violence advocates, trauma experts, women's groups and higher education organizations are in almost near-universal agreement: It's an awful idea, putting up cruel and unnecessary barriers for assault survivors. But pan-Hellenic organizations, which represent both fraternities and sororities, support it - even though men accused of assault are the only real beneficiaries.

"This bill is absurd," says Fatima Goss Graves of the National Women's Law Center. "It would make campuses less safe. It would mean that fewer students make reports to their schools at all, because why would you, if you knew that there was this range of additional hurdles?" The Safe Campus Act, sponsored by three House Republicans, dictates to an unprecedented degree how colleges and universities must handle disciplinary proceedings. All allegations of sexual assault must be reported to police, unless the victim provides a written statement that he or she does not want to report; if she doesn't report, the school cannot carry out any sort of investigatory or disciplinary proceedings against her alleged assailant. That's a big step back from the status quo, where students can choose to report their assaults to their school, to law enforcement or to both, giving them a variety of options - something experts say is crucial for survivors of violence.

"The traumatizing nature of sexual assault is that sense of powerlessness that the victim experiences," says Liz Roberts, deputy chief executive of Safe Horizon, the largest victims' services organization in the United States. "Our work is focused on restoring that sense of power and putting the survivor in the driver's seat as much as possible. Any policy that takes away choice and options from victims has the potential to do real harm." This bill would take away choice and options from both victims and educational institutions. Unless a student reports an assault to police, schools couldn't even make basic accommodations so that, for example, the alleged victim wouldn't have to share a classroom or dorm hall with an alleged perpetrator. It also would take away schools' power to suspend student organizations - such as fraternities - that the administration knows to be causing problems, unless the organizations present a "significant risk to the health and physical safety of campus community members." Frats couldn't be suspended as punishment for bad behavior. And the bill specifically says that adhering to it couldn't be construed to violate Title IX, the law that ensures women access to education. Under current law, Title IX may be violated if schools do not create safe learning environments by punishing or expelling rapists.

Professional advocates for Greek organizations, though, are all for the new legislation.

"The police involvement sends a strong message that sexual assault must be treated as the heinous crime that it is," says Jean Mrasek, chairman of the National Panhellenic Conference. "I think everyone will acknowledge that sexual assault is a crime, is a felony, and really, if you step back and think about it, what other felony do we allow a victim to evade police investigation by using the college conduct process?" In fact, campuses adjudicate all kinds of crimes where victims may not go to the police: physical assaults at fraternities, for example, or a student swiping another's laptop. They also deal with more pedestrian but serious violations, such as academic cheating or plagiarism, which can get a student swiftly kicked off campus. Under this bill, a student could still be expelled for copying a Wikipedia article, but not for committing rape, unless his victim goes to the police.

"Schools also deal with other crimes on campus, as well," says Goss Graves of the National Women's Law Center. "Certainly you wouldn't want to say schools, 'You can go ahead and address any of the myriad problems you have on campus, but when it comes to campus sexual assault, no, no, no, that's not your purview.' " The state of affairs when it comes to dealing with sexual assault on campuses is abysmal. Many women are assaulted while in college; few report it to their schools, and even fewer to police. That's because as bad as many campuses are at handling sexual assault claims, some police departments are even worse. Even when women do report to police, the investigation rate is low and the conviction rate even lower - only two accused rapists out of every 100 spend a day in jail. For some women, the process of going to the police and a possible trial is satisfying and fortifying; for others, though, it is humiliating, exhausting and traumatizing.

Women's advocates have pushed for campus adjudication processes precisely because so many college women were hesitant to report a classmate to the police but still didn't want to sit next to the assailant in class or see him around campus. With few good options, many assault victims simply dropped out of school. The goal of women's rights advocates is to create a campus adjudication process that protects victims and is fair to the accused. Forcing victims to take their claims to the criminal justice system, which has an understandably high bar of "innocent until proven guilty beyond a reasonable doubt" - the bar should be high when the punishment is jail time - often makes it impossible for campus victims, who typically know their assailant and usually lack overwhelming evidence that they did not consent, to get any justice. There are, indeed, serious due process and transparency issues with the way some schools handle adjudication of sexual assault, and a handful of male students (and many more female students) have been treated horrifically. There's no question that adjudication processes should be more transparent, consistent and fair, and that schools should do a better job of interfacing with local law enforcement and letting students know that they can report to police and to their academic institutions. But preventing schools from investigating assaults unless the police are involved doesn't solve those problems.

Campus disciplinary systems typically have lower bars than the criminal system to find assailants responsible, because the stakes are lower - schools can't imprison students, so at worst an assailant is expelled from school, and the punishment is often significantly lighter. When schools require a victim to go to the police before the campus system kicks in, it can undercut the campus disciplinary system, as an alleged assailant can point to lack of a police investigation or a prosecutor declining to indict as proof of his innocence (by contrast, the fact that a campus investigation is pending or completed won't carry any weight in the criminal system). That also leaves schools in the troubling position of having no ability to expel students who are known predators if their victims don't want to engage with the criminal justice system.

Wagatwe Wanjuki was one of those students who suffered sexual and intimate partner violence while at Tufts University. She reported her assaults in 2008, but her school didn't help her and forced her to withdraw; she turned to the police, but the process was confusing and stressful.

"It was completely overwhelming," says Wanjuki, now an anti-violence advocate. "You could tell 1/8the police chief 3/8 just did not believe me, he was not on my side, he thought I was lying, he was ignoring me and avoiding me. It was really disheartening.

"One of the things that people don't realize is that one of the traumatizing parts of being assaulted is having your autonomy taken away. Someone forces something on you, and they take away your free will to give consent," she says. This bill "is trying to coerce survivors into doing something that a lot of them are not ready for and may not want to do." So how does a bill that would make it harder to get assailants off campus and create an extra burden for victims to report help sorority women? "All the solutions that are being offered in the last 18 months or so about sexual assault benefit all women," says Mrasek of the Panhellenic Conference. "Because it's escalating a conversation that's been taboo to talk about." Mrasek says her organization supports a pair of bills introduced by House Republicans, the Safe Campus Act and the Fair Campus Act, which have provisions stating that a school can implement certain interim measures to protect alleged victims (although the Safe Campus Act only allows such measures if the student reports the attack to the police). Both bills also say campuses are "encouraged" to provide programming for students to decrease the risk of sexual assault.

Of course, that's exactly the status quo - schools already can and often do impose interim measures while investigations are pending, and they can and often do provide programming on sexual assault. It hardly takes a new law to tell a school that it may, if it wants, do what it is already permitted to do.

The core here is the reporting requirement and the free pass handed to fraternities. Mrasek points out that sorority women may be hesitant to come forward if reporting an assault means a popular fraternity or even the entire Greek system gets shut down, and that point is a compelling one that schools should seriously consider - but Congress shouldn't take it out of their hands. And if we recognize that the vague possibility of shutting down a frat may prevent a small number of sexual violence survivors from reporting their assaults, surely we can see how requiring those same women to go to the police would create an even larger deterrent. It's hard to figure out why an organization representing sorority women would support this bill at all, especially when there's some evidence that sorority women are more likely to be victims of assault, mostly because fraternity men are more likely to be assailants.

But as anyone who was in a sorority probably knows, sometimes your "sisters" just pick the boys over the girls.

Filipovic is a journalist and lawyer in New York.