Campus Rape Victims Deserve Choice in Reporting

By Lauren Hersh. Lauren is Director of Anti-Trafficking Policy and Advocacy at Sanctuary for Families

Originally published June 4, 2015 in Lohud.

Sara was out with friends when she ran into a male acquaintance from school. After a quick conversation, Sara had a drink with the young man. Shortly after, she began to feel dizzy and sick. The young man offered to take Sara to his apartment where she could rest until she felt well enough to go home. Sara then blacked out. When she came to, the young man was penetrating her.

In the days that followed, Sara cycled through an array of emotions. Fear filled her days. Self-blame and anxiety kept her awake at night, as she tried to recall the details of the attack. For months, Sara's friends urged her to report the incident. But Sara worried that if she told, she might ruin her attacker's future or worse, she might face retaliation.

On a cold day in the fall, Sara learned that she was not alone. Her attacker had committed a similar crime on another classmate. Sara could no longer remain silent and knew that reporting the incident was the only option.

For Sara and so many survivors, the process of reporting a sexual assault can be painful, complicated and fraught with mixed emotions. For some, the potential public scrutiny of a criminal proceeding may feel daunting and frightening. For others, reporting the assault to their university feels safer, more confidential and less out of control. In the days and months that follow a sexual assault, students need trauma informed assistance and victim-based advocacy. They need to be empowered to analyze the situation and decide how to best to heal and possibly seek justice.

For some, the answer is filing a police report. For others, filing an action with university is sufficient. And even others feel that counseling and time makes the most sense.

Across the country, survivors and students have criticized colleges for the way they have handled sexual assault cases. Victim blaming, delay in the process and ineffective investigation have been identified as commonplace in many university processes. To date, 94 universities are under Title IX investigation to determine whether the school has failed to adequately address the issue of sexual violence on their campus.

Some, like Westchester County Executive Rob Astorino, suggest that the solution is simple – eliminate the university from the equation and report the incident directly to the police, with or without the victim's consent. As a former prosecutor, I support law enforcement involvement. But as a lawyer and advocate who works with sexual assault survivors, I recognize that police involvement is not appropriate for every case and victim.

Police involvement often results in invasive investigations and a process that can last for years. Lack of physical evidence, absence of force and prior relationship of any kind often yield unfavorable results in a criminal justice system where the burden of proof is beyond a reasonable doubt. Even when a case is successful, numerous hours of scrutiny on a witness stand can be traumatic for even the strongest, most credible witness.

The reality is that most of these cases are messy. Rampant rape culture and society's deep-rooted stigma "what should she have done differently" creates a hostile environment for anyone who is seeking the courage to come forward. Excessive alcohol often exists in many incidents. For some students, they are ambivalent to the consequences. They are simply looking to feel safe in their school again and possibly protect their peers.

Sara has spent the last year putting the pieces of her life back together. Sara is one of the few student survivors to report her rape. Studies estimate that only 5 percent of campus sexual assaults are reported.

Recently, Sara's university found her assailant responsible for Non Consensual Sex. His sanction is pending. Part of Sara's healing has been the process of reclaiming control – that includes deciding if, when, with whom and how she will share her truth. For Sara, a criminal conviction was not necessary for the outcome to be successful.

It's safe to say colleges are stumbling as they work to create fair and effective policies to respond to a nationwide sexual violence epidemic. To date, the processes are far from perfect and require drastic reform to eliminate impunity and protect victims. But shutting down the college reporting system and eliminating an avenue for a survivor to report may in fact, further decrease the meager number of cases reported. Providing critical support and empowering choice in how to proceed are necessary in the road to justice.

A Campus Rape Risk Reduction Program That “Works” Doesn’t Help Much

By Katie Feifer

Let’s not get too excited and happy about the good news.

A new study done by researchers on three Canadian campuses and published in the New England Journal of Medicine found that providing first year students a robust program of “rape prevention”, including self defense tactics, understanding what constitutes consent and sexual assault, and strategies for staying safe on campus significantly reduced those women’s risk of being raped or sexually assaulted compared to a control group only given a brochure about sexual assault.

The New York Times was pleased to trumpet the good news in an article headlined “College Rape Prevention Proves a Rare Success.”  The opening line embellished the point: “A program that trained first-year female college students to avoid rape substantially lowered their risk of being sexually assaulted, a rare success against a problem that has been resistant to many prevention efforts...”

Why are we not so excited, and in fact cringing a little bit at this good news?

Because the study findings, and even more the news coverage of the results, once again put the onus on women to take steps not to get themselves raped. Again we have to remind everyone that the onus belongs on the small number of men who are offenders not to rape women, and on us as a society to stop perpetrators from perpetrating and hold them accountable when they do.

Those who take a course like this can lower their personal risk. Which is fine as far as it goes. That just means that the rapists will find other women to assault. It doesn’t address the cause of the problem, which is perpetrators' impunity to commit sexual violence crimes. As author and activist Jaclyn Friedman notes, quoted in Jessica Valenti’s excellent Guardian article,

Rapes are perpetrated by a tiny percentage of men who know what they’re doing and who rape again and again - they’re just going to find another target”...Friedman, who also co-edited an anthology on ending rape with me in 2008, said: “So just because these girls [who took the training] are less likely to be picked, it doesn’t mean there’s less rape on campus ... This isn’t rape prevention, it’s rape protection.

The findings from the study are encouraging, to be sure. It’s not a bad thing to provide women some tools that can help keep them safe. But we’ll say it again: it’s not enough and it’s not where we need to focus to get to the roots of the problem.

And there are other studies (like one from Kentucky showing a 50% reduction in self-reported sexual violence perpetration in high schools) that occurs when other strategies are utilized. The Green Dot program focuses on bystander intervention to engage the whole community to stop perpetration – and reframe sexual violence as not normal.

Valenti summarizes well:

We need more than just one study and more than just one training to stop rape, not just on college campuses, but everywhere. Small, short-term solutions that work for some women are terrific and I hope we fund a lot of them. But what we need more are lasting solutions for all of us - solutions that don’t just change statistics, but the culture.

 

Let's Get a Few Things Straight About Sexual Assault on Campuses

By Katie Feifer

It's back to school time and at campuses across the country college students are getting "orientations" about sexual assault along with talks on alcohol and the computer systems. It seems that this year, more loudly than in the past, pundits and attorneys are weighing in about the "outrageousness" of the processes campuses are required to follow to pursue complaints of sexual assault. We find that many of these pieces are full of falsehoods and backwards thinking. It tends to make us feel that we're living in an Alice in Wonderland kind of world. One egregious example of getting it wrong appeared in the Wall Street Journal recently. Our friends at the Victim Rights Law Center responded with a letter to the editor, not published by WSJ.  We think it's worth hearing the response, so we're posting it here.

"Peter Berkowitz’s op-ed (“College Rape Accusations and the Presumption of Male Guilt,” Aug 20, 2011) is rife with misinformation. At the Victim Rights Law Center, a nonprofit dedicated to meeting the needs of rape and sexual assault victims; we have worked with hundreds of victims who are pursuing their education rights. We serve these victims every day and know all too well what happens in school disciplinary hearings.  We can assure Mr. Berkowitz that not only is there “no presumption of male guilt”, but rather the discrimination often runs in the exact opposite direction. Mr. Berkowitz cavalierly suggests that the hearings are biased against men, however, we have had fact-finders inquire about the preferred sexual positions of our victim-clients, their sexual orientations, their manner of dress and “could [she] demonstrate how [she] danced that night?” As if any of this is relevant to whether a victim was raped.  Of course, similar questions are never leveled at the accused.

Mr. Berkowitz is also terribly confused about the definition of due process. Under the law, due process is the right to notice and a fair hearing. Nothing less and nothing more. The April 2011 “Dear Colleague” letter in no way diminishes or encourages schools to diminish the due process rights afforded to both parties. It is simply wrong to suggest otherwise. 

Ironically, it is Mr. Berkowitz who criticizes a process that helps ensure due process – the right to an appeal.  Education cases are governed by civil, not criminal, law. In any civil case, both parties have equal rights to pursue an appeal. The double jeopardy clause applies only to criminal prosecutions and the Dear Colleague letter does not pertain to criminal cases. If Mr. Berkowitz were familiar with how campus cases are routinely handled, he would know that many campuses and universities allow only the defendant – and not the complainant – to appeal the outcome. Some schools do not even inform the victim that an appeal has been filed or new “evidence” submitted, thereby denying the victim any opportunity to respond. 

As to whether the “accused should be able to question or cross-examine the accuser,” Mr. Berkowitz misses the mark by one important word – “directly.” The “Dear Colleague” letter strongly discourages schools from allowing the defendant to question or cross-examine the complainant directly. It in no way suggests that the defendant be prohibited from questioning the complainant. Rather, it recommends that questions be addressed to a neutral third party, so as to eliminate the potential for harassing or intimidating behavior.

Finally, Mr. Berkowitz once again confuses the civil and criminal laws when he criticizes the burden of proof required. Civil matters routinely require a “preponderance” showing, in contrast to the criminal justice system’s “beyond a reasonable doubt.” Schools cannot hold a rapist or sex offender criminally liable for his acts. They do not incarcerate defendants, impose jail or prison time, or otherwise inhibit a defendant’s fundamental rights. 

Mr. Berkowitz complains that the preponderance standard allows the campus disciplinary board to become “judge and jury.” This is a routine practice in administrative proceedings throughout the United States. There are hearings everyday in state and federal agencies conducted in this manner with as high stakes. Are the standards and procedures employed in hearings that address legal issues such as the right safe housing, retirement benefits, or keeping ones job not good enough for college and university academic disciplinary hearing? We think they are. 

As victim attorneys, we do not ask that everyone agree with our perspective, deliver victim-centered services or put victims first. We do not ask that colleges and universities favor one party over the other. What we demand is fairness. We demand that both parties be allowed their due process – and rather than mask irrelevant and degrading questions about sexual positions, sexual orientation and the color of the victim’s underwear – we demand that campuses and universities provide balanced and equitable responses to both parties. In other words, we expect them to follow the law.

Sincerely,

Stacy Malone, Esq., Executive Director, and the attorneys of the Victim Rights Law Center- Boston, MA and Portland, OR"