Zhiyuan Ren

06/01/2018

Instructor-Dr. Philip Broadbent

Writing 39C

Campus sexual assault: understand the problem and the best solution

In the September of 2014, Emma Sulkowicz, a senior student in Columbia,

carried a 50-pound dorm mattress wherever she went around campus. She said that

this piece will only end until a student who raped her is expelled from school. This

“Mattress Performance” acquired nationwide attention and appeared on the cover of

New York Magazine. Despite the great effort Sulkowicz had made, the student was

not expelled and eventually graduated. During Sulkowicz’s graduation ceremony, she

carried the mattress across the stage.

“At the end of the day, my rapist still goes

to this school, and they haven't done
anything about that.”
Emma Sulkowicz, (Getty Images/Anthony
Burton)
 Sexual assault has always been a serious issue across the US campuses, while it is

only until recent years, when more and more people and student activists groups like

Emma Sulkowicz in Columbia stands up to fight for the victims, that the issue has

drawn much attention. According to a study done by Campus Sexual Assault (CSA)

in recent years, approximately one in five women experienced sexual assault during

college. An American woman who go to college is more likely to be sexual assaulted

than a woman who do not go to college. A more depressing data from American Civil

Liberties Union (ACLU) shows that at least 95 percent of the campus sexual assault

cases go unreported. Even after the victims gathered great courage and chose to report

the case, the later testification process was not easier. For example, in the rape case at

the University of the Pacific in 2008, the victim Beckett Brennan was raped by three

school basketball players after a party. She firstly sought help from the local police

where she was discouraged to file a criminal charge due to the lack of evidence. Later

Brennan testified to the university's judicial review board where she said that the

board focus much on her behavior and asked many questions like how much she

drank. At last, one student was expelled from University of Pacific while after three

month, he received a full scholarship to University of Idaho. The other two students

only received suspension and were able to return to the university after several

months. "I didn't understand how you can find somebody guilty of sexual assault and

not expel them" Apparently Brennan and her family were not satisfied with the result.

She had tried to return to the university to move forward, while she said that it seemed

that everyone knew the case and she felt that she was blamed because the university
had banned women and men’ teams to socialize. At last, Brennan chose to leave the

University of Pacific.

What make it that hard for the sexual assault victims to defend their rights? One

part of the problem lies in the evidence. Many campus sexual assault cases involved

the alcohol and drug use. Being drunk make it hard to tell whether it was rape. Some

survivors even tend to blame themselves for being drunk. In most cases, the

perpetrators were acquaintance and the sexual assault happened when the victims

were incapacitated. Another big problem lies in the college itself. Many victims and

scholars argue that there is little transparency in college handling the sexual assault

cases. Many sexual assault victims said that the policies college followed or claimed

to follow for responding to the report of sexual assault are shrouded in secrecy. They

also argued that the schools are making great effort to avoid the public exposure of

these issues. Colleges are biased in order to protect the school’s reputation and thus

they tend to reduce the punishment for the perpetrators. This lack of transparency is

harmful to all students. For campus officials, the lack of transparency may create a

culture of impunity which make them not afraid of making mistakes. The secrecy also

destroys the reputation of the college administration and create suspicion on the

process college handling the cases, which further discourage victims to report and

seek help.

History of Law

Sexual assault is one of the traditional felonies that was covered by the legal system

and handled by the states police for a long time. However, as the federal government
involved more in higher education, it sought to regulate sexual assault on campus. In

1972, Title IX was enacted in the US which against sex-based discrimination in

education programs. In 1977, a Yale undergraduate student complained that a

professor gave her a “C” instead of a “A” since she refused his sexual approach. A

feminist lawyer brought this case to the court saying that sexual harassment is sex-

based discrimination. Later, the U.S. District Court for the District of Connecticut

concluded that Title IX applied to sexual assault cases. For the later twenty years, the

US congress has passed additional legislations to prevent the sexual assault on college

campuses. In 1990, congress passed the Clery Act which requires the universities to

disclose campus crime statistics. In 1992, the Higher Education Amendments required

the college to develop their own policies and adjudications but not use the law

enforcement. Sexual assault was firstly treated differently from other felonies. In

1997, the OCR issued a “Sexual Harassment Guidance” document which required

college to punish any speech that tend to be sexism.

Obama administration efforts

In 2011, the Department of Education Office for Civil Rights (OCR) issued the “Dear

Colleague Letter” which highlighted college’ obligations under Title XI and provided

specific guidances to college on how handle the sexual assault cases. It required the

university to speed up the disciplinary process by reducing the standard of proof and

using a "preponderance of the evidence" standard which means that the accused will

be found guilty if there is at least 50.1 percent chance that the sexual assault
happened. It also discouraged universities to allow parties to question each other. It

told the universities to not allow the accused students to review the complainant's

statement. OCR threaten to stop the funding if the universities do not properly

respond. Further, the Dear Colleague Letter also said the possibility of dual

investigation by the college and law enforcement and the involvement of law

enforcement does not affect college’s duty to process their own investigation.

The “Dear Colleague Letter” received much support from the victim advocate

groups, since it made it easier to find the accused students guilty and also encourage

the victims to report. However, there were also many criticizing voices which said

that the universities have gone too far in scarifying the accused students’ right. Law

professor and faculties at Harvard and University of Pennsylvania publicly decried the

change in the way sexual assault is being processed. The “preponderance of the

evidence” increase the possibility of false accusation. The forbidden of cross-

examination violate the due-process rights that United States Constitution guaranteed

in criminal trials of the accused students. If the accused students think they will not be

fairly treated, they are less likely to follow the campus procedure.

Despite the effort government has been making to coerce colleges to effective

respond to the campus sexual assault cases, there is less improvement in the situation.

In fact, according to a survey done by U.S. Senator Claire McCaskill in 2014, more

than “40% of schools in the national sample have not conducted a single investigation
in the past five years . . . [and] 20% of the nation’s largest private institutions

conducted fewer investigations than the number of incidents they reported”

Should college handle sexual assault cases?

Colleges’ procedures for handling the sexual assault cases are meant to be distinct

from the process of law enforcement. Advocates for college handling sexual assault

point out the low prosecution rate for sexual assault and argue that the victims often

fail to report to the law enforcement due to the fear that the police won’t believe them.

However, there are several drawbacks of campus approach which can be detrimental

to victims. Individuals on college campus such as administrators and professors who

handle the sexual assault cases often lack legal trainings. Title IX coordinator on

campus is only trained to the definitions of sexual assault and “the institution’s

specific grievance procedures in place to respond to complaints.” (Letter from

Russlynn Ali to Colleagues, supra note 57, at 7) Furthermore, college administration

lacks the coercive power in the criminal justice system, for example, to subpoena

witnesses. Victims often need to find evidence and witnesses themselves. This may

further lead to a spread of rumors and failing to protect victim’s confidentiality.

Finally, the punishment of accused perpetrator is much less severe in the campus

disciplinary proceedings than in the criminal justice system. The most severe penalty

that college can give to an accused student is expulsion and yet many colleges are

avoiding doing it. According to an investigation by investigation by the Center for

Public Integrity (CPI), only ten to twenty-five percent accused students who were

found responsible for the sexual assault finally received expulsion, while on the other

hand, study has shown that student rapists are often repeat offenders. Universities also

face much pressure from the donors, prospective students and special interest groups,

which would all encourage the university to avoid public negativity.

Criminal justice system is superior

The inequality between criminal justice system and college juridical process is less

prominent when the infraction is minor university enjoys great freedom in the

implementation of its academic code of conduct. When more severe cases like rape

and violate sexual assault happened, finding the truth is important. The practice of law

is highly specialized, and large prosecutor’s office often have prosecutors specialized

in various topics. The prosecutors often have years of training and experiences of

hundreds of cases before they handle severe crimes like rape. The prosecutors also

have much knowledge that cannot acquire at law schools such as forensic evidence

exploitation, fingerprint and DNA analysis, evidence of cell phone, text and cell

tower. Almost all jurisdiction in the US have enacted the “rape shield” law which

protect the victims from questions about the victims’ sexual past. In many states, the

police or detectives are allowed to testify for the accuser at preliminary hearings or in

a grand jury proceeding. These processes help to protect the victims’ confidentiality.

When college handle the sexual assault cases, it is common that the victims need to be
interviewed several times. In the criminal justice system, there is only one formal

interview after the initial report. Although the accuser will be subjected to the cross-

examination, the files of the case are keep confidential, the accuser dose not cost

anything except for time.

The rape case in Hobart and William Smith Colleges is an example that victims

regretted firstly report to the college. Anna, a freshman in Hobart and William Smith

Colleges, went to a fraternity party on campus and being drunk, a football player

escorted Anna to an empty bedroom. In the midnight, a fraternity member found the

naked football player and Anna in the bedroom, he did not do anything and left.

Anna’s friends had received text message from Anna which said that she was

frightened by a student and do not know what to do. At last, her friends found Anna

“bent over a pool table as a football player appeared to be sexually assaulting her

from behind in a darkened dance hall with six or seven people watching and

laughing”. Her friend finally called the campus police and took her to a hospital

where the examination indicates forceful intercourses with several people and several

times. The examination also confirmed the sperm in Anna’s vagina and rectum. Later,

a college administrator discouraged Anna to report to the police by telling her that it

will result a “long drawn out process” The college then started to investigate in the

case and twelve days later, the college held a hearing and clear the football players of
any guilty.

It took the college just 12 days to investigate the rape report, hold a hearing and clear the football
players. Anna said of the school's hearing, “It was one of the hardest things I have ever gone through”
CreditLeslye Davis/The New York Times

During the hearing, the three panel members from the college ask Anna many

uncomfortable and illogical questions. Two of the three member did not even look

at the examination from the hospital. Six months later, Anna decided to report her

case to the police, however, the attorney said that the long delay made it hard to

collect enough evidence.

If the case was firstly handled to the local police, with the DNA evidence, text

message evidence and the statement of the witness, the police would have done

much to help Anna and develop the case.

Require Mandatory Referral of Sex Crimes to Law Enforcement

 The Clery Act has required the colleges to publicly disclosure all reports of

campus crimes annually. Requiring mandatory referral of sex crimes to law

enforcement would be the next step. As discussed above, this will create a fair and

efficient investigation process and give the victims and the accused equal rights. A

second benefit is that it will provide a “legal safe harbor to universities under Title

IX”(Hans von Spakovsky). Currently universities spent millions of dollars every year

to meet with the changing requirements of Education Department. When the colleges

refer the sexual assault cases to the law enforcement, they will not afraid of being

“deliberately indifference” and facing a civil lawsuit. A third benefit is that the federal

and states provide many resources to the victims. For example, the post-convention

right, the right to access the crime materials. Many civic organizations and prosecutor

offices can also help the victims. Finally, referring to law enforcement can provide

more accurate data on campus sexual assault. Currently, the “one in five” data has

received many questioning voices. For example, Heather MacDonald said it would

“represent a crime wave unprecedented in civilized history” A more accurate data will

help policy makers have a better understanding of the problem.

 Works Cited

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Entanglement of Sexual Violence on College Campuses." American Journal of Trial
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CORAY, ERICA. "Victim Protection or Revictimization: Should College Disciplinary Boards

Handle Sexual Assault Claims?." Boston College Journal of Law & Social Justice, vol. 36, no.
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CBC News, “The case of Beckett Brennan”, https://www.cbsnews.com/news/the-

case-of-beckett-brennan/4/

Hendrix, Barclay Sutton. "A Feather on One Side, a Brick on the Other: Tilting the Scale
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Lave, Tamara Rice. "Campus Sexual Assault Adjudication: Why Universities Should Reject
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EBSCOhost,
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Philadelphia, “The New Rules of College Sex”

https://www.phillymag.com/articles/2011/08/22/the-new-rules-of-college-sex/

RIDOLFI-STARR, ZOE. "Transformation Requires Transparency: Critical Policy Reforms to

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Universities: A Feminist Analysis." Family Relations, vol. 66, no. 1, Feb. 2017, pp.
166-179. EBSCOhost, doi:10.1111/fare.12241
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complaint.html?_r=0

The Heritage Foundation, “Campus sexual assault: Understand the problem and how
to fix it”, https://www.heritage.org/crime-and-justice/report/campus-sexual-assault-
understanding-the-problem-and-how-fix-it