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How many colleges mishandle sexual assault cases — and what to do about it

Sen. Claire McCaskill (D-MO), Sen. Dean Heller (R-NV), Sen. Richard Blumenthal (D-CT), Sen. Kirsten Gillibrand (D-NY), Sen. Kelly Ayotte (R-NH), Sen. Mark Warner (D-VA) and Sen. Marco Rubio (R-FL) are joined by sexual assault survivors during a news conference on Wednesday about new legislation aimed at curbing sexual assaults on college and university campuses. (Photo by Chip Somodevilla/Getty Images)

A bipartisan group of senators just introduced legislation in Congress that is aimed at curbing sexual assaults on college campuses. The legislation would force school officials to be more transparent and accountable in dealing with sexual assaults, including requiring better training for on-campus personnel who investigate cases and participate in disciplinary procedures. Schools that fail to comply could face steep fines.

The push for a new law on this issue comes amid a flurry of attention on the federal level. Early this year the Obama administration formed a task force to raise awareness of the issue and improve enforcement efforts. Early in July, Missouri Sen. Claire McCaskill released the release of a survey of 350 college and university presidents which revealed how badly many institutions of higher education handle the issue. It showed, for example, that more than 40 percent of the schools had not conducted a sexual assault investigation over the last five years. And more than 20 percent of the schools provide no sexual assault response training to faculty and students, one-third of the surveyed schools provided no sexual training to students about the issue.

Against this backdrop, Meg Mott, a professor of political theory at Marlboro College in Vermont wrote the following post about how many schools mishandle the issue  and what they could do to improve things.

By Meg Mott

Sometime between freshman orientation and Thanksgiving break, a female undergraduate on a campus somewhere in the United States will be sexually assaulted by a peer. A a panel will convene to deal with the situation and will inevitably handle things poorly. Just as rape predictably occurs in the fall on some college campuses, campus disciplinary panels are also predictably ill-prepared to properly adjudicate .

Why is it that colleges can’t respond to such a predictable problem?

One explanation is that members of many campus disciplinary panels have little to no training in how to conduct an investigation or hear a rape case. Many panelists are appointed early in the fall semester with little time to get their bearings before the first case. If they are lucky, they have had a day-long training before they must evaluate testimony involving beer, semen, and lots of fear and shame.

But even if the panel had weeks to get ready, the format itself leans away from fairness. Panelists act as both prosecutors and judges. Their authority is absolute. They evaluate the evidence and determine the facts. Without attorneys present to counter unreasonable claims or object to a line of questioning, nervous panelists often subject witnesses to random and/or incriminating questions.

The third complication is that all colleges are afraid of losing prestige. Colleges keep their prestige by appealing to a specific “brand,” the set of values that keeps alumni contributing and new students coming in. Whether or not they intend to, panelists are strongly influenced by their particular brand. On campuses where victimhood is a privileged status, the accused tend to lose the presumption of innocence. On colleges where athletes are treated like demi-gods, the accuser tends to be treated as a heretic.

Given these shortcomings – the lack of training, the inquisitorial format, and the need to conform to cultural norms – one would think these panels would be outlawed.  On the contrary. Colleges are currently under a federal mandate to maintain a well-oiled disciplinary system without the wherewithal to do a good job.

The new Title IX guidelines are long on what shouldn’t happen – no cross-examination; no questioning of the parties’ sexual history; no discrimination against any of the parties on the basis of “sexual orientation or gender identity, immigration status, or whether they have a disability,” – but short on how to run a proceeding or what constitutes solid evidence. When it comes to determining the facts we’re on our own. We just have to get it right.

But if we start with the evidence of past Septembers, then what we need is not more inept disciplinary panels but more intelligence about the actual situation. All students should know how to provide solid evidence for a rape case; they should know that if they have been victimized they should not shower immediately after non-consensual sex, go to an emergency room and  expect a fairly exhaustive examination when they get there. They should also know the rights of the accused, particularly which constitutional guarantees apply in a criminal court (quite a bit) and which apply to private colleges (not so much). And if some victims ask for justice but don’t want to go to the police, we should be able to talk frankly about the option of mediation.

Unlike sexual misconduct hearings, where the panelists run the show, mediation encourages all affected parties to talk to each other. Roommates, housekeepers, an admissions counselor, along with the victim and the aggressor weigh in on the matter. Roommates describe how hard it was to concentrate when they heard what happened to their friend. Admissions counselors describe what it’s like talking to applicants after they’ve read about the party on social media. And a janitor can explain how rough it is to go to work the next day. Mediation is profoundly educational.

Unfortunately, Title IX prohibits the use of mediation — rather than a formal hearing — to resolve sexual misconduct cases.

And so we can expect that a large number of young women will be sexually assaulted by upperclassmen and that alcohol will be involved. And we can anticipate that we will be shocked when another disciplinary panel’s deficiencies show up in the national press.

Maybe once we accept that colleges cannot out-perform the criminal justice system,  permission will be granted to try something that actually draws on our strengths. We are so much better at creating the conditions where young people can learn from their mistakes than pretending we can fight crime like the professionals.