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Why colleges fail at investigating and punishing sex crimes
When my mom entered the University of Oregon in the late 1950s, a “housemother” made nightly doorjamb patrols after the 11 p.m. lights-out. Dorms were strictly segregated by gender, and opportunities for drinking alcohol and having sex were minimal — which also limited opportunities for sexual assault.
Such strictures, however, are long gone, and today my mother’s former school is convulsed by the initial failure of campus police to report the rape allegations of a student against three basketball players in March.
Campus rape certainly happened back when my mother was a student, but it was seldom talked about. Today, female students across the country are determined to bring it into the open and to hold schools responsible.
Many women have filed complaints against their universities for the mishandling of sexual assault cases. And American colleges are struggling to find the right approach to deal with the issue.
Last month the White House issued guidelines for how universities should handle reported assaults, and the Department of Education released a list of 55 schools, including Occidental College, UC Berkeley and USC, that are under investigation for their handling of sexual assault complaints.
One reason colleges are struggling is that their disciplinary systems, typically consisting of panels of faculty, administrators and sometimes students, weren’t set up to deal with potentially criminal behavior.
For more than a century, higher education followed the doctrine of in loco parentis — Latin for “in the place of a parent” — as they attempted to enforce a Victorian code of conduct of the sort my mother knew.
The doctrine of in loco parentis was anchored in British and American common law, and under its principles, campuses were authoritarian enclaves in which faculty and administrators censored student behavior. That role began to buckle when university attempts to expel students for civil rights protests were rejected by the courts, and collapsed even further when the 26th Amendment granted 18-year-olds the right to vote. By the early 1970s, the weight of the sexual revolution and antiwar protests had combined to shift responsibility away from officials and onto the students themselves.
But the demise of in loco parentis left colleges in an uncertain and awkward position. If they now had little or no control over student conduct, what role should they play — if any — when students misbehaved? And what if students acted in ways that would be criminal in broader society? If a bar brawl off campus could result in an assault charge from local cops, what about a fight in the cafeteria? Drug use? Dealing?
The disciplinary systems of colleges, designed to deal with plagiarism and roommate spats, have proved utterly inadequate to deal with the more serious issue of sexual assault. Many women report feeling victimized a second time by their universities. A female official at Columbia University asked student Emma Sulkowicz how the painful nonconsensual sex act she described enduring was “possible.”
Indeed, though the crimes at issue are considered among the most serious in the criminal code, the accusations are typically handled by campus administrators who are unlikely to have the sensitivity, forensic training or expertise required to investigate a possible sex crime.
“That’s what we’re forced into, and it’s absurd,” says David Lisak, a psychologist at the University of Massachusetts at Boston who specializes in the forensics of non-stranger rape. “It wouldn’t be happening if we didn’t have a 1,000-year system of failure dealing with sexual assault.”
The shift from in loco parentis to benign neglect has gained particular scrutiny under the broadening applications of Title IX, the 1972 federal civil rights law that prohibits sex discrimination on campuses. Rape and sexual assault were specifically cited in a 2001 Education Department legal manual about Title IX, said Colby Bruno, senior legal counsel at Victim Rights Law Center in Boston. That followed the passage of the 1990 Clery Act, which requires universities to log crimes taking place in and around campuses. It also calls for sexual assault prevention and awareness programs for students and faculty.
But students and faculty are clearly growing frustrated with university responses. At Columbia last week, female students distributed a list of men they said were campus rapists. Last week, Oregon psychology professor Jennifer Freyd wrote a letter saying campus police violated the Clery Act when they failed to log the March rape allegations.
Universities face an obvious conflict of interest as they try to handle accusations of sexual misconduct. Higher education is big business in the U.S., and as Dartmouth University recently found, well-publicized cases of sexual assault can affect the bottom line. After the university received a high number of sexual assault complaints, its 2014 applications were down by 14 percent over 2013.
To be fair, the cases can be murky, often involving conflicting stories and large amounts of alcohol. Police and prosecutors are reluctant to take on cases in which the evidence is less than overwhelming. The prosecution of sex crimes has come a long way in the last 40 years, but the question is whether campuses will continue to lag behind.
One starting place would be to reduce binge drinking. Dozens of studies have found that brief interventions for risky drinkers can go a long way in preventing future benders. Some colleges, such as Colgate, have worked to employ them.
Others are working to prevent sexual assaults. The University of New Hampshire teaches bystanders to intervene when partygoers become sexually aggressive by using such tactics as spilling drinks on potential predators or abruptly shutting off the music.
Such programs, and many others in the beginning stages of development, will allow colleges and universities to focus on what they do best: educate students.