How a Prominent Legal Group Could Change the Way Colleges Handle Rape

The American Law Institute, a scholarly group influential in legal circles, is beginning to craft guidelines on campus sexual assault that will seek to outline best practices and bring some clarity to the tangles of compliance with federal law.

The institute is perhaps best known for its Model Penal Code, which is the bedrock of many states’ criminal statutes, including sexual-assault laws. A team at the institute is now revising the sexual-violence provisions of the penal code.

The campus-rape project, on the other hand, will involve developing “guiding principles” for college officials, courts, and legislatures to use as a resource, said Suzanne B. Goldberg, a clinical professor of law and executive vice president for university life at Columbia University.

She and Vicki C. Jackson, a law professor at Harvard University, are the two primary authors of a framework that has just begun to take shape. Several principles that are part of a preliminary draft were discussed last month at the project’s first official meeting.

The principles will cover reporting, interim measures designed to help alleged victims, relations between campus and law-enforcement officials, and the adjudication of cases. “The attention to this issue in the last several years has put a spotlight on the need for processes that respond fairly and effectively to the complaints that come in,” Ms. Goldberg said.

For the extensive project, the institute has assembled a diverse group of experts, who will provide comments that Ms. Goldberg and Ms. Jackson draft and will occasionally meet to discuss them. In the group are college leaders, advocates for sexual-assault victims, and legal experts, including a lawyer in the U.S. Department of Education’s Office for Civil Rights, which over the past four years has ratcheted up pressure on colleges to improve their handling of sexual assault.

At the first meeting, that spectrum of opinions meant “there was a lot of tongue biting,” said Rebecca O’Connor, vice president for public policy at the Rape, Abuse, and Incest National Network. But, she said, “there was also a lot of head nodding.”

It’s a constructive setting for difficult conversations about campus rape, said Stephen J. Schulhofer, a law professor at New York University. He is part of the campus-focused project and also leads the effort to revise the penal code for crimes of sexual assault. The institute, he said, “can often play a valuable role and bring a sense of expertise, professionalism, and balance to that kind of a debate.”

Such debates can help take the politics out of a politicized issue, said Robb Jones, general counsel for claims management at United Educators, a risk-management and insurance firm, who is a participant in the project. They can also give legal experts an understanding of the day-to-day realities of dealing with sexual assault in a college context.

For instance, he said, virtually everyone agrees that colleges should offer academic and social accommodations to sexual-assault victims. But the project offers an opportunity to discuss crucial questions: What should those measures entail? How quickly should college officials put them in place? “When you dig down into application and practice,” Mr. Jones said, “it gets really difficult.”

Where to Begin?

The meeting’s dynamics reflected the project’s being in its early stages, Mr. Schulhofer said. There was discussion about where even to begin. “Do you take as a starting point, How can colleges best pursue their educational mission for all students?” he asked. “Or do you take as a starting point, How do colleges comply with Title IX?” People also wondered how to define the purpose of campus-based adjudication and whether it should be primarily remedial or involve serious punishments.

Another question that was deliberated, according to several people present, was how specific the law institute’s model principles should be. Broad standards might offer necessary flexibility, given the widespread differences among colleges. But a lack of detail could also lead to further confusion for colleges that continue to struggle with federal compliance. More-precise language might prove valuable in resolving controversial matters, Mr. Schulhofer said, such as whether colleges should try to resolve cases through mediation before holding formal hearings.

The degree of specificity is likely to vary depending on the issue, he noted. For example, a statement about whether to encourage mediation could apply to most colleges. A guideline covering full-time Title IX coordinators, however, probably would not, because not all colleges have the need or resources for a full-time employee in that role.

Several participants in the campus sexual-assault project are also involved in the criminal one, which for the past three years has aimed to revise the institute’s 50-year-old standards on criminal cases. Those standards place too much emphasis on physical force, Mr. Schulhofer said.

That effort has drawn criticism from some members and advisers in the institute. Nearly two dozen of them wrote a memorandum to institute members in May contending that its draft language would criminalize innocent behavior by encouraging a sweeping, affirmative-consent-like standard for all contact between sexual partners.

Mr. Schulhofer said their comments had stemmed from misunderstanding. “Much of what we proposed was consistent with existing law in roughly half of the states,” he said.

He wasn’t intending to recommend an affirmative-consent benchmark for criminal law. But he said it was worth considering something close to it for a college setting. “I think it’s better to have both parties understand that you don’t take the next step unless you’re sure that it’s welcome,” he said.

The team involved with the campus project is to meet next in June. In the meantime, Ms. Goldberg and Ms. Jackson will review dozens of comments and continue the drafting process.

Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, said the institute is “actually walking into what might be the single most controversial project they’ve ever done.” Mr. Lake, who is not involved in the project, wondered whether “a lot of people in that group fully understand what that’s likely to look like.”

Mr. Lake said he wasn’t sure whether the institute’s final principles would affect most colleges’ handling of cases, given that the organization isn’t widely known outside of the legal world. But he said that “when it comes to the courts and litigation, this will have a huge impact” — particularly as sexual-assault-related lawsuits against colleges proliferate, he added.

There was a consensus among those at the meeting that the institute needed to handle campus rape carefully and deliberately, said Ms. O’Connor, of the rape-and-abuse network. At the same time, Ms. Goldberg said, “there is a sense of urgency, because colleges and universities are grappling with these issues right now.”