In response to coverage of university mistreatment of sexual assault survivors, many observers have wondered why schools handle these crimes at all: why not just leave it to the police? Here’s the answer in a couple easy bullet points.
Why do schools handle sexual violence reports?
- Title IX requires schools to combat sex discrimination in education. One of the most common objections we hear to campus adjudication is “but isn’t rape a crime?” It absolutely is, and students who report to their schools can also report to the police. However, rape and other forms of gender-based violence is manifest and perpetuate inequality, and federal antidiscrimination law recognizes that. To make sure that all students, regardless of their gender identity and expression, have equal access to education, schools are required to prevent and respond to reports of sexual violence. This isn’t a replacement for reporting to the police; it’s a parallel option for survivors based in civil rights – rather than criminal – law.
But here’s a better question: why should schools handle sexual violence reports?
- For many survivors, campus adjudication is their only option. Many victims of sexual violence don’t want to turn to the criminal justice system: they may fear skepticism and abuse from police, prosecutors, or juries; they may not want to go through the ordeal of a long trial; they may fear retaliation from their assailant, who will most likely not end up prosecuted, let alone convicted; and they may be hesitant to send their assailants to prison. But even survivors who do report to the police are often abandoned by the system. Only a quarter of all reported rapes lead to an arrest, only a fifth lead to prosecution, and only half of those prosecutions result in felony convictions. Schools, unlike the state, must take up every report for adjudication and response according to the victim’s wishes. For most campus survivors, then, their school may be their only resource for justice and safety.
- Colleges and universities can respond to survivors’ needs that go unaddressed by the criminal justice system. A criminal trial is brought against a defendant by the state – not the victim – in defense of the state’s interests. That means that what the survivor needs is sidelined. In contrast, schools, unlike criminal courts, are focused on the victim and are required to make sure he or she has everything they need to continue their education. Examples include academic accommodations, dorm and class transfers, and mental health support. While many observers assume victims’ first priority is retribution, that may be one (or none at all) of many valid needs – and the police just can’t get a survivor an extension on their English paper due the week after they were raped.
- Colleges and universities can act quickly to protect students. Schools, unlike the criminal justice system, are in the position to suspend or expel offenders quickly to ensure a safe campus; if they had to rely on the criminal justice system to try the case, the college would have to wait years for the assailant to be taken to prison (which only happens in three in 100 rapes). As the school waited for the trial to conclude, the victim would be left on campus with her or her perpetrator – or perhaps forced out of school for his or her safety – and other students would be vulnerable to repeat violence by the assailant. If you don’t want rapists on campus, we need schools to be able to figure out if violence occurred and take action.
Q: Why do we treat campus rape different from violence in all other contexts?
A: First: we don’t. Federal law also requires K-12 schools and employers (who are subject to Title VII) to respond to sexual violence. Second, Title IX doesn’t take sexual violence away from the criminal justice system; it just gives students additional rights because equality in education is so important. Still, this question points us to an important conclusion: we should work to make sure all survivors have adequate civil protections.
Q: Isn’t sexual violence too serious for schools to handle?
A: Sexual violence is very, very serious – which is why survivors need multiple real options. Indeed, it is too serious to leave to a faulty criminal justice system, no matter how comforting our misplaced faith in that system may be.
Q: Shouldn’t perpetrators be imprisoned, not expelled?
A: Some survivors (though certainly not all) want their assailants to be incarcerated. First, though, school adjudication doesn’t preclude a criminal trial. But, additionally, only one in 20 reported rapes result in a prison sentence, which means this isn’t by any means a promised outcome for which we should abandon all other options.
Q: What about deterrence?
A: Since campus adjudication doesn’t stand in the way of reporting to the police, the small deterrent effect of the criminal justice system (remember how few rapists are convicted even when the victim reports to the police) remains. Potential repercussion from colleges or universities – which, unlike prosecutors, are required to address every case brought before them – is better deterrence than just the minuscule threat of incarceration.
Q: But aren’t colleges handling these reports terribly?
A: Yup, they absolutely are. But let’s be honest: so are the police. And because schools have only begun to be held accountable for Title IX violations recently, current abuses reflect institutional inaction more so than an inherent flaw in the law. We think the answer, then, is to improve federal enforcement of Title IX so schools actually follow legal requirements. For more information on how to create this change, check out our ED ACT NOW campaign and sign our petition.
Q: How does it work when a survivor reports to both the police and to his or her school?
A: Colleges and universities are required to investigate a report regardless of whether a police investigation is underway, so concurrent investigations may occur. Sometimes the police may ask schools to very briefly delay for evidence collection, but one process will never be put on hold for the sake of the other.
Q: What are colleges and universities required to do under Title IX?
A: I’m so glad you asked! We’ve put together this Title IX guide.
Q: What about the rights of the accused?
A: Title IX sets in place rights for accused students, too, by establishing guidelines for adjudication more rigorous than a typical disciplinary hearing for student conduct violations: because of process and federal oversight, a student who faces suspension or expulsion for raping a fellow student likely has more protections than a student who faces the same punishment for plagiarism. Schools are required to use the same evidentiary standard – the “preponderance of the evidence” – as civil courts are off campus.
Nancy Chi Cantalupo in USA Today: Rape victims need Title IX
Robin Wilson in the Chronicle: Why colleges are on the hook for sexual assault
Emily Bazelon at Slate: New York Times reports another campus sexual assault horror story. Now we need data.
Alexandra Brodsky at Al Jazeera America: Don’t criminalize college responses to sexual violence
Dana Bolger in the NY Daily News: Where rape gets a pass