There are few things we know with certainty about rape on college campuses, but here are two: It happens, and universities lie about it. A study published by the American Psychological Association shows that universities consistently underreport sexual assaults on campus and often seem reluctant to acknowledge rape when it occurs. Universities have everything to lose by admitting they have a rape problem—prestige and funding, for starters—and very little to gain by being honest. By underreporting statistics and treating victims with skepticism, schools can keep sexual assault quiet, even secret. And there’s one more thing we know about rape on college campuses: It thrives in secrecy.
Everyone agrees that the status quo is unjust. But nobody is quite certain how to fix it. Under President Obama’s direction, the Department of Education has launched a massive investigation into 94 colleges for mishandling campus sexual assault. By forcing compliance with existing rules, the feds could prevent administrators from spectacularly botching their response to rape charges—by, for instance, forcing victims to draw a diagram of anal rape. But there’s a growing consensus among civil libertarians and rape victim advocates alike that universities are irredeemably terrible at dealing with rape charges. In response, an unlikely collection of red- and blue-state legislatures is considering a series of bills this year to help victims seek justice. And here’s the shocking thing: Some of them might actually work.
Despite the widespread practice that colleges have some role in prosecuting sexual assault among students, it’s not inevitable that they should. Title IX of the Education Amendments of 1972—the source of universities’ mandate to investigate rape—simply forbids discrimination “on the basis of sex.” In elaborating upon that goal, the law also guarantees that “no person” may “be excluded from participation in, be denied benefits of, or be subjected to discrimination under” a college receiving federal funds. Following a series of test cases designed to use Title IX as an anti-rape law, the Department of Education’s Office for Civil Rights declared that sexual assault and harassment qualify as an extreme form of “discrimination,” one that denies victims equal access to educational opportunities and benefits. Thus, sexual assault is a Title IX violation, and universities are required to perform an investigation and hearing after any accusation of sexual violence. (Schools that run afoul of Title IX risk losing their federal funding.)
So far, so good—but then things start to fall apart. College disciplinary codes and procedures were designed to punish plagiarism and underage drinking, not the grave—and notoriously difficult-to-prove—crime of sexual assault. At most, schools can expel rapists, and in many cases they opt for a lighter sentence, such as suspension. Further, the government has directed schools to use a “preponderance of the evidence” standard in rape cases, which is much lower than the standard used by criminal courts and thus makes it more likely that innocent people will be found guilty. Finally, administrators are not detectives or judges, and they often wind up badly bungling the case. (Columbia University’s disciplinary board forced one victim’s best friend to write an essay from the perspective of her friend’s rapist.)
This mess is a pretty predictable consequence of the current system. Rape is a crime, and universities just aren’t equipped to deal with serious criminal wrongdoing. Title IX creates the kind of administrative remedies that might be able to fairly mete out punishment to a fraternity that marches across campus shouting “no means yes, yes means anal.” It does not give schools the tools to punish rapists. The result has been a stream of horror stories from women who face interrogation by administrators who don’t seem to know what a rape exam is.
There’s no question that the real police frequently treat rape charges with undue doubtfulness and callousness. (In many jurisdictions police forces are taking innovative steps to combat this insensitivity.) But it’s not clear that universities do better—and they frequently do even worse. At the very least, police have the tools to treat rape like the crime that it is and accused rapists like the criminals that they may be. Police can help send rapists to prison. Colleges can make them move off-campus.
Frustrated with Title IX’s shortcomings, New York, New Jersey, Rhode Island, and Virginia are experimenting with laws that could spur colleges and universities to start taking rape seriously. First on the agenda: forcing schools to open up lines of communication with law enforcement. New Jersey and Rhode Island are considering bills that would require colleges to report all sexual assault accusations to local law enforcement. The Virginia Legislature is wrangling over the details of a bill that would place police officers on the review committees that examine every rape charge; the officers would have discretion to refer certain cases to law enforcement. And in New York, Gov. Andrew Cuomo has proposed legislation that would require colleges to inform students that they have a right to report their rape to the police rather than keeping the matter internal.
All of these bills have noble aims: to punish rapists and prevent them from assaulting other victims, and to prevent colleges from dismissing or concealing rape on campus. The first three efforts, however, have a problem. Under the federal Clery Act, universities must inform rape victims that they have a right not to tell police. Without this rule, victim advocates worry that victims will be deterred from reporting rape to administrators. Many victims may want to avoid an intrusive police investigation, while others may lack evidence to prove their assault in a court of law. Some may want administrators to prevent their rapists from taking classes with them and go no further, for fear of reprisal or social hostility. (Most rape is committed by an acquaintance of the victim, and in the case of campus rape, the rapist may have many friends among the student body.) Under the Clery Act, universities are required to respect victims’ autonomy in making such consequential decisions.
Yet there remains a real concern that reputation-minded administrators will subtly dissuade—or explicitly constrain—victims from taking their charges to the police. The trick is balancing the Clery Act’s command with legitimate fears that universities are sweeping sexual assault under the rug. New York’s proposed law strikes that balance nicely, requiring colleges to inform victims of their rights to bring in the police while giving them the option to forgo legal remedies in favor of administrative solutions.
But what about the other side of the equation? From a civil libertarian standpoint, one of the most disturbing aspects of college rape prosecutions is their lack of due process. Not only does Title IX, as currently interpreted, require a low standard of evidence; it also grants accused students no access to an attorney. And though universities can’t send students to prison, they can put a permanent mark on their academic record that could haunt them throughout their professional lives.
North Dakota and South Carolina could soon inject some fairness into the campus courts. Both states are moving quickly to pass bills that would grant accused student rapists access to an attorney (at the students’ own expense) during disciplinary proceedings. False rape accusations are rare, but they do happen. In a real courtroom, the fundamental guarantees of due process can protect innocent people against these charges. But in a closed-door disciplinary proceeding, intimidated students may decline to contest their charges in favor of light sentences. Granting these students access to attorneys will at least guarantee a baseline of protection against overzealous administrators.
Campus rape, of course, is an astonishingly complex problem, one that will require more than a few state measures to resolve. This year’s flurry of legislation hasn’t produced any perfect solutions, but it has illustrated that state legislators are thinking about these issues in a surprisingly productive and enlightened way. As the law stands now, universities have a perverse incentive to keep campus rape in the shadows, to treat it like a minor mishap rather than a life-altering crime. No state can fix that quandary with a well-crafted bill. But it’s hugely encouraging to see so many try.