By Cynthia L. Cooper
Yale law student Alexandra Brodsky stepped into the U.S. Senate Dirksen Office Building last summer to participate in a roundtable on campus sexual assault convened by Sen. Claire McCaskill (D–MO). Brodsky, an activist, rape survivor, and founding codirector of the influential website KnowYourIX.org, slept at a friend’s apartment the night before and prepped in a nearby D.C. café.
At the roundtable, she sat with college administrators, justice advocates, and members of Congress. “It was so remarkable for me to remember that I was an undergraduate only four years earlier and we couldn’t get a meeting with our own school president. And now we were being heard,” says Brodsky, currently a rising 3L at the New Haven, Connecticut–based school.
The issue at hand—if and how local police should be involved with campus sexual assault complaints—did not have consensus. Some roundtable participants said they want immediate police engagement or required reporting of a campus sexual assault to the local police by campus authorities or a complainant. During her turn to speak, Brodsky said campus officials discouraged her from going to the local police after she was raped, but she rejects the mandatory involvement of local police. “I would have never come forward if that had been the only option,” she said.
A whir of activity during the past 15 months—an Obama task force, headline coverage, state and federal legislative proposals, a documentary movie, online advocacy, and student protests—catapulted campus sexual assault from a simmering concern to cauldron-bursting urgency.
“We’re really starting to see an investment of resources from college leadership. What we’ve seen is a paradigm shift,” says Alison Kiss, executive director of the 25-year-old Clery Center for Security on Campus in Wayne, Pennsylvania, which conducts training for college administrators. “Higher education is held to a higher standard, and it should be,” Kiss adds.
Although few close to the issue challenge whether sexual assault needs to be better addressed on campuses, differing opinions emerge on how best to tackle it.
Should policy refer to a “victim” or an “accuser”? Should “consent” be redefined as an affirmative “yes”? What standard of proof should be used in student disciplinary hearings? Are complainants entitled to have an advocate at disciplinary proceedings—and what about the accused?
And the ultimate question: What will bring about lasting change in ending sexual assault on campus?
Campuses are grappling seriously with these questions—and, suddenly, legislatures are, too.
“Institutions are so used to being insular. So many campuses are struggling with what to do,” says Sandra Henriquez, executive director of the California Coalition Against Sexual Assault in Sacramento, which released a student-advised report on sexual assault in November 2014 recommending survivor centeredness, community collaboration, and comprehensive prevention.
The problem of sexual assault on campus is not new. In 1986, Jeanne Clery was raped and killed by another student at Lehigh University in Bethlehem, Pennsylvania. In 1989, a New York Times article raised an alarm about a 33 percent increase in “acquaintance rapes and sexual assaults” at a state university in California.
What’s more, in 2009, the National Institute for Justice, based in Washington, D.C., released a comprehensive analysis indicating that one in five college women is a victim of an attempted or actual sexual assault. That same year, “Sexual Assault on Campus: A Frustrating Search for Justice” by investigative reporters at the Center for Public Integrity and National Public Radio, both based in Washington, D.C., probed slipshod handling of campus rapes.
While sexual assault on a campus, as elsewhere, can be prosecuted as a crime by local law enforcement, a university or college has an “independent responsibility to investigate and address sexual violence,” according to the Office for Civil Rights (OCR) of the U.S. Department of Education. The matters are handled through school disciplinary proceedings—administrative hearings in which student or faculty adjudicators review complaints and apply institutional sanctions up to and including expulsion.
Three federal laws apply to issues related to sexual assault on campus: Title IX, the Clery Act, and the Family Educational Rights and Privacy Act (see sidebar on page 7). Colleges and universities are expected to report on crime statistics and take action on sexual assault by prevention, training, investigation, services and protection for survivors, and prompt and fair adjudication.
OCR intensified attention to sexual assault on campus with an important “Dear Colleague Letter” in 2011, putting federally funded educational institutions on notice that they would be held to rigorous standards.
Student activists, including sexual assault survivors Annie Clark and Andrea Pino (pictured, opposite)—both featured in the new documentary film The Hunting Ground—filed Title IX complaints in 2013 on the poor handling of their cases at the University of North Carolina at Chapel Hill. Founding an online site, End Rape on Campus, they helped students at other colleges and universities do the same. Lawyers also filed claims; some sued schools. By the end of 2014, 102 Title IX complaints about sexual assault on campus were filed, compared with 19 in 2011; in the first quarter of 2015, 51 already had been filed, according to a Department of Education letter to Sen. Barbara Boxer (D–CA).
In April 2014, the White House Task Force to Protect Students from Sexual Assault released “Not Alone,” a report and website (www.notalone.gov) calling on institutions of higher education to conduct sexual assault climate surveys, provide better prevention and response programs, and improve disciplinary mechanisms. At the same time, OCR issued clarifying 53-page guidance on student rights and school obligations and released the names of campuses under investigation that were previously kept under wraps.
By fall 2014, the White House launched another website, It’s on Us (itsonus.org), urging bystander intervention. “Understand that if someone does not or cannot consent to sex, it’s rape,” it states.
“The last five years there has been change that feels like a generational shift,” says Colby Bruno, senior legal counsel of the Victim Rights Law Center in Boston, who has been working on the issue for more than a decade. “I never thought in my time as a lawyer that I would see it. Student activism has helped to bring this to the forefront. And you have an administration that wants to make college a safe place for people.”
No single force has moved the needle, but slight tremors are softening the ground. In the past year, major colleges and universities have revised and implemented new campus policies.
The Massachusetts Institute of Technology (MIT) in Cambridge became the first high-profile institution to conduct a sexual assault campus climate survey, releasing the first set of results in October 2014.
Sarah Rankin, MIT’s Title IX coordinator, says this survey was launched in early 2014 when newly appointed Chancellor Cynthia Barnhart asked for help in understanding the issue of sexual assault on campus. “It’s MIT, right? We’re a place of inquiry, and data driven,” Rankin says.
Collecting data seemed like a natural first step. “We had nothing specific about MIT,” Rankin adds. “Communities respond better to specifics about their own community.”
Students replied vigorously—35 percent of the almost 11,000 students completed a voluntary survey. One question permitting open comments had 1,200 responses. “The climate survey itself raised important conversations in the community,” Rankin says.
Survey results indicate that unwanted sexual behavior was experienced by 24 percent of female students and 7 percent of male students. Less than 5 percent of those affected reported the incidents. Graduate students and undergraduates alike expressed difficulties with unwanted sexual behavior and confusion about how to access campus resources.
MIT held town hall meetings, revamped reporting processes, and added staff to its sexual violence prevention program. The university posted tools on a dedicated section of its website, sharing its climate survey planning design, focus group testing, implementation, post-survey review, evaluation, communications, and tips. These tools can be used on other campuses, too.
In January 2015, the Association of American Universities in Washington, D.C., announced that it intended to conduct a comprehensive sexual assault climate survey on 28 campuses.
Advocates report that quiet changes are helping on the ground. Bruno highlights the OCR 2014 guidance affirming the confidentiality of victim conversations with campus rape counselors, which some colleges and universities had attempted to override. “Counselors who refused were losing their jobs left, right, and center,” Bruno reports. OCR made it clear that this is not acceptable. “[Having counselors available] benefits victims in a really important way,” Bruno says.
Brodsky hailed the release of the names of colleges that are under Title IX investigation by OCR. “It made a huge difference for advocates,” she explains. “Before, you had no idea who was under investigation. You couldn’t effectively communicate; you couldn’t hold the Department of Education accountable.”
Even before colleges and universities could fully absorb the changes from the Campus SaVE Act, Violence Against Women Act amendments (see sidebar, opposite), new OCR guidance, White House Task Force recommendations, and vigorous Title IX investigations, new proposals were swirling, including three federal bills.
The Survivor Outreach and Support Campus Act (SOS Campus Act), introduced by Sen. Boxer and Rep. Susan Davis (D–CA), would require colleges and universities that receive federal assistance to have an independent advocate to help sexual assault survivors.
The Hold Accountable and Lend Transparency on Campus Sexual Assault Act (HALT Campus Sexual Assault Act), introduced by Rep. Jackie Speier (D–CA) and Rep. Patrick Meehan (R–PA), would require federally funded colleges and universities to conduct annual sexual assault climate surveys, give victims a private right of action, establish a federal interagency task force, and provide fines for Title IX violations rather than the sole (and improbable) sanction of the school’s losing all federal funds.
The Campus Accountability and Safety Act (CASA), introduced by Sen. McCaskill with leadership support from Sen. Kirsten Gillibrand (D–NY), collected over 30 bipartisan signers. This bill would require confidential advisors for victims of sexual assault, specialized training for campus personnel, annual sexual violence surveys, uniform disciplinary hearings without special procedures for athletes, information-sharing with local law enforcement, and Title IX penalties based on a percentage of the institution’s operating budget.
Many states’ laws are also addressing sexual assault on college campuses.
California: In September 2014, Gov. Jerry Brown signed two laws regarding campus rape. As of April 2015, 11 California institutions were facing Title IX investigations, including Stanford University, Occidental College, and four campuses in the University of California system. SB 967, known as the “yes means yes” law, applies an affirmative consent standard in disciplinary hearings on sexual assault (see sidebar). Less publicized, the law establishes a preponderance of the evidence standard in evaluating a complaint and requires institutions to adopt “victim-centered” policies and protect victim privacy. AB 1433 requires campus officials to notify local police authorities about violent sexual assaults. The state university systems in California separately established independent advocates for sexual assault victims. A pending bill would impose minimum punishments for perpetrators.
Virginia: Gov. Terry McAuliffe signed bills in May that require college and university campuses to notify local prosecutors of felony sexual assaults; establish sexual violence review committees with power to override victim anonymity; require college and university employees to report sexual assaults; create agreements for services with a local rape crisis center; and place a notation on transcripts of accused students who are suspended, expelled, or withdraw. The state leapt into the spotlight because of a later-retracted story in Rolling Stone magazine in late 2014 about a rape at the University of Virginia, but the campus was already facing one of the longest standing Title IX investigations. Five other Virginia campuses were also under Title IX investigations by OCR as of April 2015.
New York State: On July 7, Gov. Andrew Cuomo signed “Enough Is Enough,” legislation he proposed in January. Fourteen campuses in New York State were under Title IX investigations as of April, including Sarah Lawrence College, Columbia University (highlighted by a female complainant’s mattress-carrying project), and four colleges in the state university system. “We have to have legislation as well as culture change. This is a national epidemic—no state, no school is immune,” Cuomo said at a Manhattan event promoting the bill. The Cuomo legislation requires all colleges and universities to apply a standard of affirmative consent in disciplinary cases; have a Students’ Bill of Rights that describes reporting options, including to outside law enforcement; and offer immunity from other campus violations (alcohol, for example) for students reporting sexual assault. The law, already in effect in state-operated institutions, requires compliance by all of the colleges and universities in the state by July 2016.
Connecticut passed a law allowing the University of Connecticut in Storrs to hire nurses to work with sexual assault victims. A lawsuit by five UConn students for mishandling their sexual assault complaints was settled for $1.28 million in July 2014.
Maryland adopted a law requiring campuses to have agreements with rape crisis centers; inform students of their right to go to local police; permit victims to come forward without fearing alcohol violations; and undertake climate surveys.
Oregon enacted legislation to protect the confidentiality of conversations between sexual assault survivors and counselors in the wake of an incident in which the University of Oregon in Eugene accessed a survivor’s therapy records.
Changes also come with detractors. When new procedures were announced at Harvard University, 28 professors from the Boston-based law school objected to what they said was a lack of fairness and due process for the accused. Sixteen law professors at the University of Pennsylvania in Philadelphia denounced the new campus procedures because they limited cross examination and used the “preponderance of evidence” standard.
This standard also bothers Patricia Hamill, a commercial litigator at Conrad O’Brien P.C. in Philadelphia, who has filed two lawsuits against colleges on behalf of accused males, and who, with 19 other lawyers, wrote Sen. McCaskill to express concerns about the direction of federal bills. Disciplinary proceedings can have “life-changing and dramatic repercussions for those accused,” Hamill says.
Among other things, Hamill believes that accused students should be able to put forward evidence and hear the evidence against them. “It’s a very imperfect system,” she says. “We’re in an evolutionary phase. The pendulum has swung to the other side. What we’re looking for is fairness for all concerned.”
Advocates for victims, focused on the day-to-day life on campus, are also searching for answers.
“I’m not sure if more legislation is needed right now,” says Kiss of the Clery Center.
Brodsky is concerned about the aftereffects of rape and trauma on particular survivors—undocumented students, international students who must carry a minimum course load, and financial aid recipients who could lose a scholarship if they need time to recover.
Katie Rose Guest Pryal, a lawyer who is a volunteer consultant for End Rape on Campus, is developing a toolkit to engage pro bono or “low-bono” lawyers for survivors and their parents. “Parents feel scared and hurt because their child has been scared and hurt,” Pryal says. She is researching how disability laws might aid traumatized survivors.
Laura Dunn, a rape survivor and lawyer who in 2014 founded SurvJusticeNow, raised a series of questions about CASA on a blog post. The way that the bill would amend and open up Title IX is “risky,” she says.
“Everyone wants tangible change because they know that this is such a problem,” Bruno says. “And it is. But I would much rather see meaningful change. I would much rather see schools get on board. We have a lot of rules—let’s see how they play out.”
Three federal laws guide matters related to sexual assault on campus:
Title IX of the Education Amendments Act of 1972 (20 U.S.C. § 1681 et seq.) prohibits sex discrimination in federally supported educational institutions and requires colleges to take immediate steps in response to complaints of sexual violence. Enforcement by the Office for Civil Rights (OCR) of the U.S. Department of Education involves the investigations of specific and university-wide practices. Institutions found in violation can lose federal funds. Expectations of campuses were updated by a “Dear Colleague Letter” in 2011, the Campus Sexual Violence Elimination Act (Campus SaVE) in the Violence Against Women Reauthorization Act of 2013 (VAWA), and an OCR guidance, “Questions and Answers on Title IX and Sexual Violence,” released in April 2014.
The Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (20 U.S.C. § 1092(f)), known as the Clery Act, was passed in 1990. It requires colleges and universities to track and disclose crime statistics. The Federal Student Aid office of the U.S. Department of Education monitors the law through a special unit organized in 2010, and it may issue fines of $35,000 per violation to colleges and universities that fail to comply. VAWA added dating violence, domestic violence, and stalking to sexual assault reporting; regulations took effect July 1, 2015.
The Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) (FERPA) protects the privacy of student educational records at all colleges and universities that receive federal funding and is enforced by the Family Policy Compliance Office of the U.S. Department of Education.
“Yes means yes” is an “affirmative consent” standard used in adjudicating student disciplinary matters on sexual assault in California, New York, and some campus policies.
“Affirmative consent” is defined in the California law as: “affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”
The law further states that a lack of affirmative consent cannot be excused because of intoxication of the accused or because the complainant was asleep, unconscious, or incapacitated.
Colby Bruno, senior legal counsel of the Victim Rights Law Center in Boston, says that “yes means yes” offers a distinction without a difference. “Either you have consent, or you don’t,” she points out. “It’s implemented in the exact same way. It doesn’t shift the burden.”