Why Colleges Shouldn’t Be Handling Sexual-Assault Complaints

Jake May, The Flint Journal via AP Images

Michigan State University finds itself in a seemingly endless controversy over its failure to take seriously repeated complaints of sexual assaults of young women by Larry Nassar, a university physician who was convicted in November of seven counts of sexual assault. In late March, William Strampel, the dean of the school of osteopathic medicine at the university who oversaw Nassar, was arrested on charges that he failed to stop Nassar’s criminal behavior and that he sexually harassed and intimidated female students.

Investigations of the university’s handling of the sexual-abuse charges have been initiated by the U.S. Department of Education, the attorney general of Michigan, the Michigan state legislature, and the NCAA. In addition, more than 200 women have joined in various private lawsuits seeking damages from the university, and in late March an international financial rating group, citing “historical Title IX concerns on campus,” downgraded the outlook for Michigan State to negative. The main reason is the institution’s potential legal liability for the sexual assaults.

Such is the long shadow of Larry Nassar’s crimes. On several occasions, victims reported their abuse to Michigan State officials, but they were doubted and treated dismissively.

The university is said to have been overly protective of Nassar, its star employee. One of the accusations against Strampel is that he agreed to have a professional chaperone in the room with Nassar during delicate patient exams, but he failed to do so, and Nassar’s sexual assaults continued.

Colleges have special responsibilities to protect students from sexual abuse, and yet they have largely failed in responding to the sexual-assault crisis. It’s time to open the process of victims reporting assaults to more neutral organizations, ones that unlike universities have no inherent conflict of interest.

The need for change is particularly acute when sexual assaults are involved with big-money college sports programs. This has been evidenced by scandals, cover-ups, lawsuits, and millions of dollars in settlements over the last few years at Baylor University, the University of Tennessee, Florida State University, and Pennsylvania State University. Nothing in the law on a university’s role in protecting students from sexual abuse supports the notion that a denial by the perpetrator ends the investigation, and yet that seems to have been the default mode in some cases.

In truth, universities have a fundamental conflict of interest when it comes to representing students who say that they have been abused by someone in the institution’s big-dollar athletics program. Few colleges, and even fewer employees in the athletic department, want to trigger the widespread negative publicity that threatens the millions of dollars in revenue generated by a major collegiate athletics program.

I have found very few examples of colleges that have allowed highly paid coaches or money-making athletes to fall into disrepute because the institution sought to protect a mere student. There are many examples, though, in which the opposite has happened: The student’s word is doubted and the athlete is excused.

We can do much better than that. The time is right for the development of an alternative avenue for reporting sexual abuse that is not controlled by universities or collegiate athletic organizations.

We need an outside entity for processing reports and allegations of sexual assault that is dedicated to ensuring integrity, fairness, and independence. In all respects, from its sources of funding to its relationship with institutions that are accused, its hallmark must be that its work is honest, not subject to compromise, and beyond all political influence, federal or state. In particular, the organization will have no fear of athletic departments.

The first task of this external entity will be to safeguard the victim’s information and ensure that the affected institution provides a full and professional investigation. It will also have an important role to play in guaranteeing that those who report assaults have access to good legal advice about their options and protective support once a complaint is lodged, something that is often not available now.

If this type of reporting arrangement had been in place in the 1990s, scores of young women at Michigan State could have been saved from the double indignities of being sexually assaulted and then ignored by the university that is supposed to be protecting them. In addition, Michigan State itself would likely not be facing the present pervasive doubts about its competency and resolve.

This third-party entity could also provide neutral and reliable investigations of complaints. Universities that want to protect their revenue-rich athletic programs may be uncomfortable with an outside voice involved in issues of sexual assault, but, like all institutions, they should see this alternative as a way to ensure fair resolutions for their students. Through this approach, a university can restore its credibility in a highly charged area where its effectiveness has been questioned.

Many existing organizations, including several foundations and ethics groups, could fulfill this role of the neutral outsider. It would also be appropriate for a benefactor to start a new, freestanding entity that is devoted solely to freeing young women from the specter that there are sexual dues to pay to achieve success.

It is profoundly sad that universities have had great difficulty in fulfilling their responsibility for nurturing and protecting students. Perhaps all institutions will find their way to the right path in the future — but for now we need more than mere promises that charges of sexual assaults will be taken seriously and student victims treated fairly.

We need a dedicated non-academic complaint-processing organization for matters of sexual assault.

John C. Weistart is a professor of law at the Duke University School of Law. He has written extensively on law and sports.

Correction (4/4/2018, 3:38 p.m.): This article originally spelled the name of a former Michigan State physician inconsistently. His name is Larry Nassar, not Nasser. The article has been updated to reflect this correction.