Not too long ago, a woman who was sexually assaulted on campus might understandably have felt that her experience was, if not unique, at least uncommon. Colleges, worried about their reputations, often downplayed such incidents, sweeping rape accusations under the rug, underreporting assault allegations or failing to take meaningful action against perpetrators.
Today, however, it would be difficult for a student anywhere to be unaware of the issue. There are few schools in the country — big or small, public or private — that are not agonizing over how best to address what is increasingly seen as an epidemic of sexual assault. Even President Obama has taken on the subject, asserting at a news conference in January that an estimated 1 in 5 women is sexually assaulted in college. Usually the crime is committed by someone she knows, often by someone who has done it before.
This month, the U.S. Department of Education said it was investigating no fewer than 55 institutions of higher learning for possible mishandling of sexual assault complaints; that includes two schools in Los Angeles — Occidental College and USC — as well as UC Berkeley. The same week, a White House task force released its first report, a general overview that emphasizes measures to prevent assault, flags some of the confusing reporting protocol and offers a checklist for drafting a comprehensive policy to prevent sexual misconduct. Misconduct includes not just sexual assault — which is non-consensual sexual contact or intercourse or an attempt at it — but also sexual harassment, dating violence, stalking and intimidation.
These are important steps toward changing a pernicious culture that for many years allowed students — overwhelmingly female students — to be victimized without effective recourse. But addressing sexual assault is complicated. Schools are not law enforcement agencies; they’re not set up to conduct investigations or hold trials or render verdicts, yet they are required to do so under federal law. In establishing procedures to deal with sexual assault, they must be sure that victims are treated with respect, that complaints are taken seriously and pursued vigorously — and that the due process rights of the accused are not abridged.
There are some overarching principles that should guide any school’s investigation into an allegation of sexual assault or misconduct. Any school panel should be trained before investigating and sitting in judgment on a student’s complaint. Everyone on the panel needs to understand certain basic realities: For instance, that a previous sexual relationship does not imply consent or preclude a finding of sexual violence. And that sex with a person who does not consent — or cannot consent — is unacceptable.
There is nothing wrong with having students on the panel, but we are troubled by the idea of allowing a majority of members to be students. Do students, even if they’re trained, have the maturity and life experience to dominate such a serious proceeding?
The rights of the accuser and the rights of the accused must be protected equally. Both should have the same opportunities to present witnesses and evidence, to have lawyers and to appeal, among other things. These hearings can result in a student being expelled, a severe punishment that can cripple a person for years. Of course, someone proved to have committed sexual assault should face a long suspension or expulsion, to protect the campus community.
In many cases, victims prefer confidentiality, and that wish can and should be respected during the counseling process that most schools offer. But victims who want to take a complaint through a school disciplinary process should have to come forward in the course of that process just as they would in a criminal proceeding. The accused have a right to know who is accusing them.
Colleges are required to investigate and take action in cases of sexual assault. Nevertheless, it is to everyone’s benefit if serious crimes are also brought to the attention of the police and investigated. Victims of sexual assault sometimes don’t want to go through the emotionally wrenching process of a criminal investigation and trial, but it is important and should be encouraged.
Stanford University’s sexual misconduct review process, which the school overhauled several years ago, offers some smart ideas about how to run a fair hearing. All complaints of sexual misconduct are first investigated by a trained judicial officer on staff, who then makes a decision on whether a complaint should go on to a review panel. The rights of the accuser and the accused are meticulously spelled out and are comparable. Whatever advisors, information or opportunity to explain that the accuser gets, the accused gets as well. Although the accuser and accused are never in the same room during the hearing, when one is speaking before the review panel, the other is allowed to listen in on a telephone line — and email questions to the panel members. That way they don’t have to face or address each other but may hear and respond to each other’s assertions. The decision of the panel and the punishment it decides on can be appealed by either student. From 2010 to 2013 at Stanford, 12 complaints were sent on to a review panel, and in seven, the accused student was found responsible.
The 1-in-5 figure cited by Obama is based on a 2007 study and has been criticized for sampling only two large, unnamed universities. The fact is that much more study is needed to understand the prevalence of campus sexual assault. One of the best recommendations in the White House task force report is a call for schools to undertake a “climate survey” of all their campuses. The task force offers a blueprint for how to proceed. Survey techniques should be comparable across the country.
A school can’t manage a problem if it doesn’t know the extent of it.