Colleges and universities can no longer afford to take a wait-and-see approach to sexual assault, legal experts told an energized audience attending the American Bar Association showcase program “Sexual Assault on College Campuses: Balancing the Rights and Interests of the Accused and the Victim” on August 6 at the ABA Annual Meeting in San Francisco.
Panelists discussed some of the most pressing issues concerning campus sexual violence that included the federal government’s commitment to addressing the issue; best practices and policies or handling allegations of sexual assault and other campus violence; Title IX complaints and compliance; due process rights of the accused with the interests of the victim; and the issue of consent.
"Campus sexual violence is a serious and real problem and it must be handled with care, diligence, and expert thought,” said panel moderator Andrew S. Boutros, Seyfarth Shaw LLP in Chicago and a former federal prosecutor. “Any solution must appropriately balance the rights of the victim and the accused. Victimizing the victim is just as problematic as permitting the innocent to be punished.”
Title IX, which prohibits sex discrimination in schools that receive federal funding, has been effectively used to include sexual harassment, sexual assault and rape as discrimination. Title IX applies equally to men, faculty and staff.
“The government is taking Title IX seriously,” said Caroline “Carrie” Bettinger-Lopez, White House advisor on Violence Against Women, and senior advisor to Vice President Joe Biden and member of the White House Council on Women and Girls.
President Barak Obama established the White House Task Force to Protect Students from Sexual Assault in January 2014. In April 2014, the Obama administration released the “Not Alone” Report, a handbook developed by the department of education to present specific procedures for higher learning institutions to follow in meeting campus safety and security requirements of the higher education act of 1965, as amended. In September 2014, the Obama administration launched the “It’s On Us” initiative -- an awareness campaign to help put an end to sexual assault on college campuses. It's On Us asks everyone -- men and women across America -- to make a personal pledge to step off the sidelines and be part of the solution to campus sexual assault. More than 600 colleges and universities have chapters and more than 350,000 students have signed the pledge.
Other federal programs have also been instituted, including the Campus Climate Surveys. The survey helps schools understand the nature of sexual assault. The survey presents results of a nine-school pilot test that collected data on sexual victimization of 25,000 undergraduate students to help schools to better understand the climate and culture of their campus. The survey determined 28 percent of transgender students and 35 percent of bisexual students experience sexual assault on college campuses. The survey was self-reporting by students whom had been victimized. “There has never been federal data available on this issue before,” Bettinger-Lopez said.
Panelist Noreen Farrell, executive director, Equal Rights Advocates, San Francisco, said her organization was at the forefront of addressing the issues and complaints involving early Title IX cases. She says there has been very little progress since 1977 in changing the culture on college campuses.
The equal rights advocates got involved in sexual assault cases on college campuses in working with school administrators in helping to file complaints, advising on criminal cases, as well as how these cases are impacting Title IX. “We work to carefully calibrate what is happening with the rights of the accused and the rights of victims,” Farrell said, adding that nobody benefits in these cases if neither side is treated fairly.
Meanwhile, Farrell said there are not even appropriate safety measures in place to protect the student who has made the complaint.
“Make no mistake, there are serial rapists on many college and university campuses. And the lack of coordination in reporting and investing incidents allow them to remain on campus far too long,” she said. “If there is a change in the campus culture it creates a disincentive for campus sexual assault to happen in the first place,” Farrell said.
Robert M. Cary, Williams & Connolly, Washington, a defense lawyer for more than 25 years, represented one of the Duke University Lacrosse players who was falsely accused of sexual misconduct at Duke and was later vindicated.
Cary speaks for the accused in campus sexual assault cases and said that if a student is falsely accused or if the sex was consensual, life can become devastating for the person accused of the crime.
He said the clients he represents believes the system is rigged and unfair against them. “They feel colleges and universities have every incentive to impress the Title IX coordinators to ensure them they are dealing rigorously with crimes of sexual assault and not to risk losing their federal funding, which is an exponential threat to a college,” Cary said.
Carey said he if he was a college president, he would place one major change at the top of his to do list, “I would limit the amount of alcohol consumption. I think the abuse of alcohol leads to increases in abuse and sexual assault on college campuses.”
Judge M. Margaret McKeown, U.S. Court of Appeals for the Ninth Circuit in San Diego, said the courts are looking for fairness in these cases and want to ensure due process for both sides. “The courts are the last resort for these types of cases. It means that the prevention process has failed and the legal process has failed,” McKeown said.
McKeown mentioned two projects developed by the American Law Institute. The first project is examining due process in sexual assault on college campuses to develop a usual framework. It has an expert panel of reporters and advisors, who are primarily examining reporting procedures, confidentiality, the role of the police and college administrators. The second project examines the role and definition of consent. In the past two years, there have been 129 federal cases on rape in the court. Ninety of those have been in relation to rape on college campuses. “The courts take these matters very seriously,” McKeown said.
“Sexual Assault on College Campuses: Balancing the Rights and Interests of the Accused and the Victim” was sponsored by the Criminal Justice Section.