As we endure scandal after scandal concerning sexual assaults on college campuses—scandals that repeatedly show administrators failing to properly investigate, punish, or educate their way out of the problem—I fear that we are drawing the wrong conclusions. Colleges don’t have the ability to investigate sex crimes or the right to properly punish them any more than they can enforce the law regarding robbery or homicide. Those failures compromise colleges’ most important obligation and best hope for solving the problem: educating students to change the culture around sexual violence.
As a feminist who shares the longstanding skepticism about the criminal-justice system’s response to sexual assault, I am reluctant to turn down any chance to intervene against sexual violence. Rape law notoriously pits the status of the victim against that of the defendant in determining the behavior of the police, the credibility of the charge, and the eventual verdict. Many cases dissolve during the uphill slog that such a contest demands.
We live under laws on sexual assault that, in large part, were not written with women’s interests in mind. Consider women’s prior sexual conduct. Until the mid-1970s, there were no legal restrictions on introducing women’s sexual history into a trial for rape. Until the 1980s, the majority of states’ rape statutes excluded rape within marriage, and marital rape remains extremely difficult to prosecute. The legal verdict on whether sex is nonconsensual still often rests on the perspective of the alleged perpetrator rather than the experience of the victim.
The resulting lack of trust undermines efforts to deal with sexual violence through the police and the courts. The federal Bureau of Justice Statistics estimates that 65 percent of rapes and sexual assaults are not reported to the police. The most common reason cited by victims is their belief that the police will not or cannot help, or will not protect them from reprisal by the perpetrator. On campus, those problems may be exacerbated by young women’s desire to protect their social reputations, by the high status of male perpetrators, and by uncertainty about what authority has jurisdiction.
So why not turn to noncriminal procedures administered by the college? Seizing this logic, advocates for gender equality have persuaded the federal government, under civil-rights authority, to force higher-education institutions to investigate and punish crimes of sexual violence. Dozens of colleges are under investigation for failing to comply.
Although not explicit in the rationale for this approach, the lower standard of proof required to bring campus disciplinary action—including expulsion—is surely attractive to antirape activists, as it is for other civil-rights advocates who pursue civil remedies. If getting beyond reasonable doubt is more difficult for sex crimes than for other offenses, relying on campus proceedings may be justified. Doing so is also quicker and less public, and the traditional view of colleges as providing parentlike supervision over their students adds legitimacy to campus authorities.
But this downgrades sexual violence from a real crime to a women’s issue. And there is no evidence that it is working to reduce sexual violence on and around campuses. There are, however, lots of stories of failure, on campuses ranging from small, elite colleges to big public institutions. Conservatives object to the feminist agenda of ratcheting up consent rules. Civil libertarians mourn the presumption of innocence and due process. And feminists are stuck between demanding more action and protesting the harmful consequences of the actions colleges do take. In too many cases, rather than helping to punish sexual assault and prevent its occurrence, these failures contribute to reluctance in reporting, and—as in the recent case at the University of Virginia—undermine trust in both the authorities and the victims who turn to them for help.
There are two compelling reasons to turn our efforts away from campus authorities and back to the criminal-justice system. First, the state enforcers of criminal law are more susceptible to public pressure and advocacy than are the thousands of disparate colleges and administrators who operate between public and private scrutiny, and whose interests are always divided between doing the right thing and protecting their reputations. For example, laws restricting the introduction of women’s prior sexual conduct at trial, and criminalizing marital rape—once they achieved a foothold—spread through most of the country in a generation (way too slow, and way too late, but sadly still a relative success story).
Second, experience so far painfully demonstrates that colleges are not competent to adjudicate and prevent sexual violence. As institutions, they bring to the task a toxic mix of unqualified investigators, underdeveloped judiciary processes, and conflicts of interest that undermine both their effectiveness and their legitimacy.
This is not to minimize the systemic problems in the criminal-justice system. Its flaws are inequitable, doing a worse job the higher the status of the defendant and the lower the status of the victim. But there is no reason to believe that colleges are better at solving that problem. It’s not poor or marginalized men who are getting away with sexual assault in our faulty campus judicial proceedings.
Of course, institutions of higher education must respond to reported crimes on their campuses and among their students. No one should suggest returning to the days of simply ignoring sex crimes, even if that were permitted under federal law. But rather than try to run the process, why not impose a simple set of rules to work with the criminal-justice system? Provide support and advice to victims about reporting crimes to the police and medical personnel. Support requests for orders of protection and civil lawsuits for damages. Offer and encourage counseling. And suspend students who are charged with violent crimes, and expel them upon conviction. That will allow action to protect victims sooner than securing a criminal conviction, and on a lower standard than reasonable doubt. And it won’t leave the determination of guilt up to the colleges.
Then focus on education. Colleges will be more effective at combating the cultural supports of systemic sexual violence if they remove themselves from the roles of law-enforcement officer and prosecutor, and instead turn to on the work of developing knowledge, fostering new kinds of thinking, and challenging young people to change their society—including the criminal-justice system—for the better.
