Joe Cohn is legislative and policy director for the Foundation for Individual Rights in Education.
Sexual assault on campus catapulted into the national consciousness in 2014 in part because of the White House’s hotly contested assertion that as many as “ one in five women is a survivor of attempted or completed sexual violence while in college.” November’s sensational Rolling Stone article about the alleged rape of a University of Virginia student, and the subsequent media coverage of the story’s unraveling , ensure that campus sexual assault will continue to be front and center in 2015.
Criticism of colleges’ responses to allegations of sexual assault has poured in from every direction. Victims’ rights advocates argue that college administrators are politically motivated to sweep accusations under the carpet. Civil libertarians and law professors cite the lack of meaningful procedural safeguards for the accused. College administrators quietly express frustration that they are being forced to decide these cases when they are ill-equipped to do so.
Many have asked why universities are handling sexual assault — a felony — at all. The simple answer is that courts and federal agencies have interpreted Title IX to require universities to respond to known instances of sexual discrimination in a manner that is reasonably calculated to redress the discrimination and prevent its recurrence. (Sexual violence is considered an extreme form of sex discrimination.) But how exactly colleges should respond remains unsettled.
Some have suggested that colleges should embrace policies that severely curtail the due process rights of accused students. Victims’ rights advocates increasingly plead that such curtailments are acceptable because Title IX has a different goal than the criminal justice system. In a recent column in Politico, Yale Law School students Elizabeth Deutsch and Alexandra Brodsky argue that Title IX is concerned with equal access to educational opportunities, whereas the criminal justice system “does not and cannot respond to these equality concerns.” Therefore, the students conclude, relying on law enforcement to provide the sole solution is inadequate, and providing meaningful due process in campus hearings is unnecessary. Sen. Claire McCaskill (D-Mo.) articulated a similar point during a recent hearing .
Title IX and the criminal justice system do have different goals. The former aims to eliminate discrimination, while the latter aims to punish the guilty and get predators off the streets. But regardless of the ultimate purpose of the inquiry, it always begins with the same question: Are the allegations true? Brodsky, Deutsch, McCaskill and others gloss over the huge difference in the competencies and capabilities of law enforcement professionals and university administrators in making these determinations. Tinkering with campus procedures — by changing the definition of consent or lowering the burden of proof, for example — doesn’t bridge this fundamental divide.
Expecting amateur college panels to consistently make sound judgments about felonies without access to forensic evidence or the ability to subpoena witnesses or get testimony under oath is unreasonable. And when allegations of sexual assault go without proper investigation for months or years, as was allegedly the case at the University of Virginia, it becomes difficult or impossible for anyone to determine the truth. This erodes confidence in the system and leads people on all sides to retreat to prejudice rather than fact.
To fulfill their legal and moral obligations under Title IX, colleges should focus on tasks they are competent to perform: conducting preventive education, securing counseling for alleged victims and providing academic and housing accommodations to keep students safe while the wheels of justice turn. Colleges should also quickly connect student complainants to medical resources and law enforcement, and they should provide them with the resources they need to navigate the criminal justice system. Colleges are capable of fulfilling such responsibilities successfully. These accommodations could even be implemented on an interim basis while a criminal case is adjudicated in court, to be removed when appropriate or should an accusation be unsubstantiated.
Victims’ rights advocates must accept that the criminal justice system is better suited for the adjudication of sexual assault cases. Law enforcement has tools to conduct thorough investigations that colleges lack, and courts have the procedural competency and evidentiary expertise to achieve a fair and just result. Further, only courts have the power to hand down the proper punishment when a guilty finding is secured. (We are, after all, talking about rape.) And, importantly, only courts can put serial predators in a place where they cannot prey on others, whether enrolled in college or not.
If the criminal justice system has too often failed victims of sexual assault, then it should be reformed to ensure that allegations are promptly and effectively pursued. Demanding that universities play a role they have proven incapable of fulfilling — and which, even if executed perfectly, leaves predators on the streets and ignores the plight of young people who aren’t enrolled in college — is doomed to failure. The solution is to assign universities and law enforcement professionals complementary, rather than overlapping, responsibilities.
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