The victims and perpetrators of campus sexual assault often start out as friends. A formal complaint can turn them into uncomfortable adversaries, with no-contact orders forbidding them from speaking to each other. But both parties tend to walk away from the experience with a shared enemy: the campus judicial system.
Feminist and men’s rights activists — two groups not known to agree — each call the sexual assault disciplinary process inadequate, arguing that it perpetuates slut-shaming rape culture (according to one side) or the so-called war on men and their due process (according to the other). From the outside, it looks like a paradox: How can campus adjudication be simultaneously stacked against the wrongfully accused AND so traumatic for righteous accusers it scares them away from reporting their assaults?
An in-depth weekend New York Times investigation of a sexual assault case at Hobart and William Smith offered a glimpse into the problems that have plagued many campuses, leaving both accusers and accused demanding their rights, and prompting a White House inquiry. Below, an examination of the issues prompted by the article.
The Hobart and William Smith case is familiar: Girl blacks out at a frat party, says she was raped, football players say she instigated it. How do colleges decide if it was rape?
It varies. The disciplinary process for sexual assault is different at each school, and all students’ disciplinary records are confidential. But the procedure uncovered by the Times at Hobart and William Smith is common. Decisions are often rendered by a three-person panel made up of college staff and faculty. In a closed session, the panel questions the accused and the accuser about evidence found by a campus police investigation, as well as the written witness statements that both parties submit.
What about a discreet and fast tribunal “re-traumatizes” victims?
Campus hearings can be as adversarial as trials, but without any of the transparency, not to mention the professional expertise. Typically each student is allowed an adviser, as long as it’s not a family member or, often, a lawyer, but these advisers do not speak during hearings. (At Brown, one accused student’s assigned adviser was the “campus director of dining services, who he says had little knowledge of the disciplinary process.”)
The panel doesn’t necessarily have all the information, either. In the Hobart and William Smith case, two out of three panelists reportedly did not examine the accuser's medical records, which were damning. They showed blunt-force trauma indicating “intercourse with either multiple partners, multiple times or that the intercourse was very forceful,” according to the Times, as well as sperm or semen in her vagina, her rectum, and her underwear.
But without a lawyer, the accuser was defenseless against off-topic and humiliating questions about how text messages work, the style of her dancing, whom she kissed that night, as well as interrogations based on witness statements she hadn't seen and misreadings of the witness statements she provided.
Part of this boils down to a lack of training. According to an investigation by Senator Claire McCaskill — a former sex-crimes prosecutor — one third of colleges and universities have failed to properly train the administrators who handle sexual assault adjudication.
What are professors and dining-hall managers doing convicting young men of rape anyway?
Well, they’re not convicting anyone. Campus tribunals are not criminal courts. In sexual assault hearings, administrators seek to ensure that they themselves adhere to a civil rights law, Title IX (the same federal mandate that requires them to offer women’s sports). It says that any school that receives federal funding has a legal obligation to provide women equal access to education, which means creating an environment free from the threat of sexual violence. If Hobart football players took advantage of blacked-out female student, they made their campus a hostile learning environment for women, a problem administrators should theoretically have the power to deal with.
So they punish men for the school's failure?
Title IX requires administrators to exercise their power to remove sexual offenders from the environment — temporarily, permanently, until the accuser graduates — even if the accused wouldn’t be found guilty in a criminal court. That’s explicit: In a 2011 open letter, the Department of Education reminded colleges that these civil cases have a much lower burden of proof than criminal cases. Instead of proving “beyond a reasonable doubt” that they were raped, victims need only a “preponderance of evidence." That’s taken to mean showing that it is more likely than not that sexual assault occurred. Granted, suspension or expulsion is a far cry from being convicted of a felony, imprisoned, and branded a rapist for life. But some experts worry that sending accused rapists off on vague leaves of absence only enables them to land safely at other campuses and victimize more students.
If victims don’t trust the campus system, why don’t they just go to the real cops?
It can take years to put together a criminal prosecution and the campus disciplinary system is designed to resolve conflicts on a semester pace. Besides, there is little promise that the criminal justice system can offer victims anything better. In fact, the accuser from Hobart went to the police six months later. According to the Times, the detective made several mistakes: mischaracterizing witness statements, misreading her blood-alcohol tests, and overlooking the fact that the accused men changed their stories over the course of the investigation. The district attorney quickly concluded he had “virtually nothing to work with.”
Anyone got any better ideas?
Some schools are successfully experimenting with “single investigator” adjudication. That means a trained administrator interviews the accuser and the accused, gathers physical evidence, interviews available witnesses, and then either delivers a finding, makes a recommendation, or mediates an agreement with the offender. This model has also made strange bedfellows: Both the female-oriented White House task force and defender of accused men Title IX consultant Brett Sokolow have cited single investigator adjudication as a promising new strategy. The campus sexual assault debate isn’t pretty, but nor is it the gory battle of the sexes some commentators have made it out to be.