When a student comes forward to a campus official to report a rape, the college, under federal law, must investigate and resolve the case. That puts institutions in a tough spot: They aren’t courts, but they are required to take on a fraught issue that even the criminal-justice system struggles to handle.
Colleges’ missteps in this process have been highly publicized of late. They can bring complaints from students who have reported assaults. Federal and state investigations can result, as well as lawsuits from accused students who say they were unfairly punished.
So colleges are searching for clarity on how, exactly, to respond to reports of rape.
Federal guidance on Title IX of the Education Amendments of 1972—the civil-rights law that prohibits sex discrimination at institutions that receive federal money, requiring them to respond to sexual violence on campuses—says colleges’ responses must be “prompt, thorough, and impartial.” But for many institutions, figuring out how to do that is still a work in progress.
Colleges wrestle with endless questions: Who should field sexual-assault reports, and who should investigate them? What skills should those people have? How much would it cost to hire or train investigators? How can the process balance the rights and sensitivities of accusing and accused students, both before and during a hearing? And if a student is found responsible for misconduct, then what?
“Universities are, frankly, somewhat frightened by what they perceive to be conflicting pressures and legal demands,” says David Lisak, a clinical psychologist and former professor at the University of Massachusetts at Boston who studies campus sexual assault. While colleges are generally equipped to handle infractions like theft or plagiarism, they often lack the tools for dealing with sexual violence as the law demands. “In a lot of ways,” Mr. Lisak says, “it makes no sense for a university to try to handle sexual-assault cases.”
Government Guidance
But they must, and the government has gotten louder, if not clearer, about enforcement. Guidance from the U.S. Department of Education in 2011 prescribed a certain standard of evidence (more likely than not) for campus cases, and settlements with individual colleges have specified other policies and procedures. Those developments, and growing activism from students, have prompted some colleges to change the way they respond to reports of rape. And there’s no shortage of consultants, Webinars, and training sessions promoting certain considerations, even complete models.
Among colleges’ hardest tasks is deciding who should investigate reports of sexual assault, and how. The stakes are high: Colleges have to gather reliable information, often about an alcohol-related incident, while being fair to both parties.
To accomplish this, many institutions are turning to trained investigators. Sometimes university employees, sometimes not, they know that if they bungle their questions or take incomplete notes, a student who has come forward may feel alienated—and that one who stands accused may be denied a fair hearing.
“The first questions, if not framed correctly, can have a chilling effect” on the reporting of rape, and on whether a case can move forward, says S. Daniel Carter, director of the 32 National Campus Safety Initiative, which is named for the 32 professors and students who were killed by a gunman at Virginia Tech in 2007. Victims who feel that their institutions have shrugged off their statements, he says, often say that officials seem “tone deaf” to their trauma.
Experienced investigators are attuned to the complexities of this issue, experts say. A victim may display counterintuitive behavior—laughing, say, while describing an assault—or wait weeks or months after an incident to file a report.
In hearing cases, colleges must be swift but fair. If they act too slowly, they may make the reporting student feel slighted or even more vulnerable. A rushed process, though, can erode the accused student’s due-process rights. Lawsuits against St. Joseph’s University, Vassar College, and Xavier University, in Ohio, each make such claims.
As for who presides over hearings, activists and observers have faulted many colleges for using panels of faculty, staff, or students who lack a nuanced understanding of sexual violence. That can be especially uncomfortable on a small campus. So other alternatives have emerged, says Gina Maisto Smith, a lawyer who consults with several colleges under federal investigations for alleged mishandling of sexual assault. Some colleges, she says, now use panels of trained administrators from nearby institutions. Another approach is to hire an outside investigator to complement the institutional knowledge of trained faculty and staff members.
If a student is found responsible to some degree, deciding on a penalty can be difficult. Yale University faced criticism this summer for inconsistency, after a public report showed that findings of “nonconsensual sex” had sometimes led to written reprimands and other times to limitations on contact. Other colleges have recently taken a tougher stance: In July, Duke University announced revised sanctioning guidelines that make expulsion the recommended penalty for students found responsible for sexual assault.
As institutions scramble to protect students and to meet legal obligations, some colleges are finding that federal guidance on Title IX that was meant to allow some institutional flexibility can be a mixed blessing. Trying to get things right has made some campus officials wonder, Ms. Smith says, whether “it may be easier not to have choice.”
How One College Handles Sexual-Misconduct Reports
As one of about two dozen colleges under federal investigation for allegedly mishandling sexual-misconduct complaints, the University of North Carolina at Chapel Hill is re-evaluating its system for resolving students’ reports of assault by other students. So far, this continuing review has led Chapel Hill to revamp its reporting process, hire new staff members to field and investigate reports, and set up a committee to review the institutional response from all sides. As of September, here’s how the process works:
