Who Should Handle Campus Rape?
A university professor's proposal could help schools balance allegations
of sexual assault with an accused student's due process rights.
If there's one thing the anti-campus rape movement and the backlash
it's prompted can agree on, it’s that schools have struggled with
handling allegations of sexual assault. The documentary “The Hunting Ground,” which saw an expanded release on Friday, is littered with examples of assault allegations being swept under the rug.
Meanwhile, representatives of the accused say the recent spotlight has prompted schools to overcorrect at the cost of a suspect's due process rights. At an event last week at the National Press Club, organized in response to the release of “The Hunting Ground,” former Auburn University student Joshua Strange told his story of being expelled for what he says was an unfounded allegation of sexual assault, thanks to a disciplinary process led by a school librarian.
To appease the concerns of both victims and the students they accuse, one of Strange's fellow panelists – John Banzhaf, a public interest law professor at George Washington University – is backing a solution he says would also benefit schools struggling to support the resources required to internally investigate sexual assault.
“It is incredibly difficult, even if the prosecutor is motivated, even if the police department is motivated, to get a conviction,” Banzhaf said at Friday's panel. “So I advocate a third ground.”
The Department of Education has signaled it is taking more seriously the enforcement of Title IX – the federal civil rights law that has been used to file complaints against colleges accused of mishandling allegations – by opening 96 investigations last year, up from 17 in 2012. One of a school’s requirements under Title IX is that colleges must investigate alleged assaults and take measures to see that the victim can continue his or her education. Those measures, if deemed appropriate, include expelling the alleged assailant.
Banzhaf's proposal, however, would be to set up an independent organization funded and shared by schools in a geographic area, akin to a consortium of universities that shares everything from library books to teaching staff. Colleges in a specific area, such as in and around the nation's capital, would pool funding to finance a team of experts fully trained in investigating campus sexual assault.
If adjudication is deemed necessary, the schools could refer a case to an independent arbitration panel set up to hear it and mete out punishments.
"They could afford to have to keep on staff two or three or four people because they are covering 30 to 40 colleges. They would have the training, they would have the expertise, to interview the victims fairly and properly, to get and preserve the evidence, and to do so in a completely impartial way,” Banzhaf said.
Aside from addressing concerns about competency, Banzhaf contends an independent organization could remove bias – real or perceived – from the process.
“Colleges on the one hand are pushed not to find rape. It can hurt their reputation – who wants to be known as 'Rape U'?” he said Friday. “And then colleges are pushed in the other direction by [the Department of Education] and many of the activists and organizations.
"But a consortium wouldn't be pushed in any way at all. They don't have donors, they don't have basketball teams. They are completely and totally impartial."
As a first step, Banzhaf says he would like to see the federal government offer grant funding for a trial program in a metropolitan area.
Experts who work on the campus rape issue from various perspectives are receptive of the idea, though a little skeptical
“It could add some value,” says Vernon Strickland, an attorney at law firm Holland & Knight who specializes in higher education, including sexual assault complaints. “Some of the challenges facing institutions dealing with these [cases] is, is there enough resources to collect all the evidence and prepare for a due process by a hearing or by looking at the evidence?”
He adds that many universities hire outside consultants like himself to investigate claims.
“It has potential,” says John Foubert, an Oklahoma State University professor of higher education and president of the anti-rape organization One in Four.
“As just sort of a thought exercise, it would potentially address the issue of campuses wanting to hide their rape statistics,” he says.
However, Foubert says he's concerned such a process could replicate the problems seen in the criminal justice system, with its often slow pace and stereotyping of victims that can make survivors reluctant to report assaults in the first place.
“I would afraid we would repeat those. We could get a very slow system where people tend to believe the cultural myths about rape that aren’t a reality,” he says.
And Lisa Maatz, vice president of government relations for the American Association of University Women, says shifting the responsibility away from individual universities reflects “a fundamental misunderstanding of the civil rights element" of the anti-campus rape movement.
In terms of Title IX, colleges aren't only supposed to act as judge and jury, she says.
“There’s a broader piece. They have to look at the specific situation, but also the broader campus climate: What is it that they can be doing to prevent it from happening to someone else?” Maatz says.
Even colleges that are in a similar region have different campus cultures, she says. And how a large state university should handle allegations should differ from the process at a small liberal arts school.
“A consortium isn't going to know the particularities of the campus,” she says, adding, “I do think it's interesting, and I am always glad when people have a thoughtful idea.”
Meanwhile, representatives of the accused say the recent spotlight has prompted schools to overcorrect at the cost of a suspect's due process rights. At an event last week at the National Press Club, organized in response to the release of “The Hunting Ground,” former Auburn University student Joshua Strange told his story of being expelled for what he says was an unfounded allegation of sexual assault, thanks to a disciplinary process led by a school librarian.
To appease the concerns of both victims and the students they accuse, one of Strange's fellow panelists – John Banzhaf, a public interest law professor at George Washington University – is backing a solution he says would also benefit schools struggling to support the resources required to internally investigate sexual assault.
“It is incredibly difficult, even if the prosecutor is motivated, even if the police department is motivated, to get a conviction,” Banzhaf said at Friday's panel. “So I advocate a third ground.”
The Department of Education has signaled it is taking more seriously the enforcement of Title IX – the federal civil rights law that has been used to file complaints against colleges accused of mishandling allegations – by opening 96 investigations last year, up from 17 in 2012. One of a school’s requirements under Title IX is that colleges must investigate alleged assaults and take measures to see that the victim can continue his or her education. Those measures, if deemed appropriate, include expelling the alleged assailant.
Banzhaf's proposal, however, would be to set up an independent organization funded and shared by schools in a geographic area, akin to a consortium of universities that shares everything from library books to teaching staff. Colleges in a specific area, such as in and around the nation's capital, would pool funding to finance a team of experts fully trained in investigating campus sexual assault.
If adjudication is deemed necessary, the schools could refer a case to an independent arbitration panel set up to hear it and mete out punishments.
"They could afford to have to keep on staff two or three or four people because they are covering 30 to 40 colleges. They would have the training, they would have the expertise, to interview the victims fairly and properly, to get and preserve the evidence, and to do so in a completely impartial way,” Banzhaf said.
Aside from addressing concerns about competency, Banzhaf contends an independent organization could remove bias – real or perceived – from the process.
“Colleges on the one hand are pushed not to find rape. It can hurt their reputation – who wants to be known as 'Rape U'?” he said Friday. “And then colleges are pushed in the other direction by [the Department of Education] and many of the activists and organizations.
"But a consortium wouldn't be pushed in any way at all. They don't have donors, they don't have basketball teams. They are completely and totally impartial."
As a first step, Banzhaf says he would like to see the federal government offer grant funding for a trial program in a metropolitan area.
Experts who work on the campus rape issue from various perspectives are receptive of the idea, though a little skeptical
“It could add some value,” says Vernon Strickland, an attorney at law firm Holland & Knight who specializes in higher education, including sexual assault complaints. “Some of the challenges facing institutions dealing with these [cases] is, is there enough resources to collect all the evidence and prepare for a due process by a hearing or by looking at the evidence?”
He adds that many universities hire outside consultants like himself to investigate claims.
“It has potential,” says John Foubert, an Oklahoma State University professor of higher education and president of the anti-rape organization One in Four.
“As just sort of a thought exercise, it would potentially address the issue of campuses wanting to hide their rape statistics,” he says.
However, Foubert says he's concerned such a process could replicate the problems seen in the criminal justice system, with its often slow pace and stereotyping of victims that can make survivors reluctant to report assaults in the first place.
“I would afraid we would repeat those. We could get a very slow system where people tend to believe the cultural myths about rape that aren’t a reality,” he says.
And Lisa Maatz, vice president of government relations for the American Association of University Women, says shifting the responsibility away from individual universities reflects “a fundamental misunderstanding of the civil rights element" of the anti-campus rape movement.
In terms of Title IX, colleges aren't only supposed to act as judge and jury, she says.
“There’s a broader piece. They have to look at the specific situation, but also the broader campus climate: What is it that they can be doing to prevent it from happening to someone else?” Maatz says.
Even colleges that are in a similar region have different campus cultures, she says. And how a large state university should handle allegations should differ from the process at a small liberal arts school.
“A consortium isn't going to know the particularities of the campus,” she says, adding, “I do think it's interesting, and I am always glad when people have a thoughtful idea.”
Who Should Handle Campus Rape?
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