So who should be responsible for ending campus sexual assault?
Last Tuesday, Sen. Sheldon Whitehouse (D-RI) led a Senate Judiciary Subcommittee meeting on law enforcement’s response to campus sexual assault. The purpose of the hearing was to address the role of law enforcement in the investigation and prosecution of a rape claim. In his opening statements to the panel of witnesses and attendees, Sen. Whitehouse called for better policing instead of “amateur university investigations,” begging the question: can universities be trusted to investigate sexual assault alone?
The guiding concern of the hearing was the number of sexual assault cases that go unreported on college and university campuses – a practice that, essentially, violates federal law requiring such reporting. Sen. Whitehouse, chair of the Crime and Terrorism Subcommittee, stressed his feeling that law enforcement must be engaged in the process of combating campus sex assault in light of some universities’ self-serving approach to response.
“As a former United States Attorney and as the Attorney General for my state, I’m concerned that law enforcement is being marginalized when it comes to the crime of campus sexual assault. I’m concerned that the specter of flawed law enforcement overshadows the harm of marginalized law enforcement,” Sen. Whitehouse said. “Anything can be done badly,” he continued, “but law enforcement done right makes sure forensic and electronic evidence is properly collected and preserved. It empowers the victim. It informs her of her continuing power through the stages of investigation and prosecution.”
Sen. Whitehouse suggested that leaving universities to their own devices in the investigation of a rape claim only contributes to the delay of justice for potential victims. Involving law enforcement “brings professionalism and tools like subpoena and grand jury,” he said, but some anti-violence advocates don’t want to see comprehensive investigation of campus sex assault co-opted by the criminalization of the process. What’s more, such legal devices – like grand juries and subpoenas – have shown themselves just as suspect in the execution of justice, irrespective of the crime.
Advocates like Alexandra Brodsky, co-founding director of Know Your IX, and Elizabeth Deutsch, firmly believe that a cops-only approach to the issue lets schools off the hook, just as much as a schools-only approach worsens an already terrible rate of prosecution. Brodsky and Deutsch warn that such myopic policy development misses how campus sexual assault manufactures an education equity crisis for survivors.
Writing for Politico, the Yale Law School duo stressed the need to hold colleges and universities accountable under existing federal law and clarified how prosecution through the criminal justice system can still fail to meet the needs of victims. “The criminal justice system does not and cannot respond to these equality concerns. Criminal prosecutions are not about the victim. The state, not the survivor, is the plaintiff, and prosecution is not required. Indeed, only about 8 percent of rapes are ever actually prosecuted,” they write, pointing out the institutional problematic of engaging a system so ill-fitted to prosecute on behalf of sexual violence survivors, and even less suited to reform or rehabilitate the offender.
“Schools are undoubtedly failing survivors,” they write, “but, rather than abdicating responsibility to a system with different ends and different means, they should face the challenge of educational equality head on. Colleges should build disciplinary procedures focused on a victim’s ability to continue to learn, nestling sexual misconduct policies within broader anti-discrimination protections.”
Placing sexual assault and harassment under the purview of federal anti-discrimination law was a direct response to Yale University’s failure to respond to multiple claims brought by student victims in 1976. The victory in the challenge was the ultimate recognition that rape, sexual assault, harassment, or any other form of gender-based violence toward a student constitutes a clear violation of that student’s civil right to education. For a survivor, the trauma of returning to classes or moving about the confined spaces of a college campus with one’s assailant, creates a substantive disruption of that individual’s education. More than that, however, in the absence of swift administrative response, there are no set rules of engagement governing how law enforcement might separate the two parties, provide responsive victim services, or help the parties resume their education without triggering the victim.
Brodsky and Deutsch also clarify that police involvement and Title IX enforcement are not mutually exclusive events. While their argument seems to make a solid case for keeping law enforcement on a tight leash in campus sexual assault investigations, the pair aren’t calling for the disengagement of law enforcement. Instead, they make the demand that schools ought not be allowed to shirk their legal responsibility to enforce Title IX – the strongest legal mechanism barring discrimination in education – nor should schools or members of law enforcement ignore the actual experts in building survivor support systems: survivors.
Sens. Claire McCaskill (D-MO) and Sen. Kristen Gillibrand (D-NY), who also testified at Tuesday’s hearing, reiterated the elements of their Campus Accountability and Safety Act (CASA) that call for a “memorandum-of-understanding” (MOU) between campuses and their local police department to permit the seamless legal prosecution of an offender if and when the survivor chooses; expeditious analysis of evidence; and other jurisdictional matters.
In her comments, Sen. Gillibrand, on the record, stood by Jackie, and urged the Committee to focus on survivor-centered models of intervention, and school accountability. She held up the example of the Ashland Police Department in Ashland, Oregon as a best practice. “The department found that by using trauma-informed investigative techniques and allowing victims to provide as much, or as little, information about the assault as the victims choose, and in the time-frame that they feel comfortable, the department can actually increase reporting and collect better evidence,” she said. The You Have Options Reporting Program counts participating law enforcement agencies (LEA) in six states, and it attempts to reform participating LEAs’ approach to sex assault investigations. It aims to decriminalize the reporting process, and work with community-based advocates to meet survivors’ needs.
The program, which is housed by the Ashland PD, saw a 106 percent increase in the reporting of sexual assaults between 2010 and 2013.
So at the end of the day, cops and colleges can change campus sexual assault as we know it – but the larger advocate community must ensure that they do it. The Senate is listening. How do we engage the full Senate Judiciary Committee to move on CASA and institutionalize victim-centered police response?
Track the Campus Accountability and Safety Act here.
Learn more about students’ rights under Title IX.