This article contains a discussion of sexual assault, which may be triggering for some readers.
Imagine a young female-identified student at Brown. She might be someone you know, or she might be someone you’ve never met before. Her name is Rebecca. Last weekend, Rebecca went to a party on campus. When she returned that night, she heard a knock on her door. It was a male-identified student who lives in her unit. She let him in and they talked for a short time. Then things began to get uncomfortable. He moved over to sit next to her on her bed and started touching her. She told him that she wanted to go to sleep. She said she wasn’t interested in him like that. He would not go away or take his hands off her. She tried to push him away, but he became more and more forceful. That night, he raped her. Ever since then, it’s been a struggle for Rebecca just to function. She feels anxious and ashamed. Every morning, she tries to drag herself out of bed to get to class, but she’s battling a fear that she’ll run into her assailant somewhere on campus — in the hallway, as she’s coming out of the bathroom, in line at the Ratty or studying at the Rock. Each time she sees him, she’s flooded with fear and flashes back to the assault. Each time her friends talk about him, she is reminded of the trauma she went through at his hands, and she wants to run back to her room. But Rebecca knows that, even there, she is not safe. He lives on her floor. He assaulted her in that room.
The narrative above is fictitious, but it is based on the real experiences of many students both on campus and across the country. Brown should be a place where all students are physically, mentally and emotionally safe to develop as individuals and scholars. But for too many students, Brown is a place where they will be sexually assaulted. Approximately one in five American women experiences sexual assault during her college career. Put in terms of life at Brown, that statistic indicates that out of the 782 women in the Class of 2017, 156 will be survivors of rape — and countless more of sexual harassment. While statistics are harder to compile on the sexual assault of men, they further add to these numbers.
Statistically, out of the 782 women in the Class of 2017, 156 will be survivors of rape — and countless more of sexual harassment.
The prevalence of sexual assault on college campuses has recently attracted renewed national attention. Some cite the serious nature of sexual assault, and the alleged incompetence of campus disciplinary systems, to argue that campus sexual assault should be addressed like any other violent crime: through the criminal justice system. However, this push to outsource sexual assault reports to the courts is insensitive to the varied needs of survivors. Instead, we should renew our efforts to strengthen campus-based response systems.
Before delving into deeper discussion, it’s important to understand the definitions of these terms, although legal definitions vary across states and are still in flux. Sexual assault is generally considered any sexual contact without consent, while rape is specifically contingent on penetration with any body part or object.
Several relevant pieces of legislation bear on the fight to eradicate campus sexual assault. Title IX of the Education Amendments of 1972 requires schools to combat sexual aggression by supporting survivors and ensuring that all students have equal access to education. Experiencing sexual assault can be a serious obstacle to a student’s education, and therefore the crime represents a civil rights violation. Title IX requires that federally funded schools establish a way to deal with reports of sexual assault and take immediate action to remove all barriers to reporting sexual misconduct. It also requires that schools not only support and protect the reporting student, but also employ a Title IX coordinator to ensure the school’s compliance. Title IX, in tandem with the 1990 Clery Act — which compels schools that receive federal aid to publish an Annual Campus Security Report detailing crime statistics for the past three years, campus crime prevention strategies and the procedures to be followed in the investigation and prosecution of sexual assault reports — requires universities to take an active role in sexual assault prevention.
The sexual assault legislation currently on the books is important, but insufficient. In January, to bolster the federal response to this issue, President Barack Obama convened the White House Task Force to Protect Students from Sexual Assault, a panel of government officials tasked with framing the federal government’s role in eradicating campus sexual assault. The Rape Abuse and Incest National Network (RAINN), the nation’s largest organization against sexual violence, recently issued a set of recommendations to the task force. The main thrust of its report articulated the necessity that campuses “formaliz[e] the role and responsibility of law enforcement in the response to on-campus sexual violence” while deemphasizing or eliminating the role of schools’ internal disciplinary boards in adjudicating sexual assault allegations. RAINN encouraged the federal government to work with colleges and universities to “treat allegations of sexual assault as they would murder and other violent felonies,” asserting that “the crime of rape just does not fit the capabilities of [internal] boards.” RAINN, in seeking to alleviate a complicated and sensitive crisis, advocated what amounts to a one-size-fits-all solution. Given RAINN’s prominence in combating sexual assault on a national scale, and its influence on the conversation surrounding that fight, its support for putative solutions is especially troubling.
The cry for more law enforcement involvement in investigating reports of sexual assault is not unique to RAINN. On January 16, California Assemblyman Mike Gatto introduced a bill that would require colleges and universities in California to forward all reports of violent crimes, including sexual assault, to law enforcement officials. After hearing complaints from survivors and activists that the law would discourage survivors from reporting their assaults, Gatto later amended the bill to allow students to request that their report not be forwarded to local law enforcement. Nonetheless, it is clear that influential antiviolence advocates have qualms about colleges’ responses to sexual assault. They are right to be concerned, but to abandon the campus disciplinary process entirely simply exacerbates the problem at hand.
First and foremost, a concern for the survivor’s well-being and personal desires must be basic to a discussion of addressing reports of sexual assault. Sexual assault is a loss of control for the survivor. It violates several of the most fundamental human rights: bodily autonomy and physical safety. It is therefore crucial that any system through which sexual assault is investigated or prosecuted prioritizes the survivor’s comfort as well as his or her mental, emotional and physical safety. Sexual assault response systems must recognize that survivors do not constitute a monolithic group and respond to their trauma in different ways. For a variety of reasons, not all survivors of sexual assault want to report their assaults — much less press charges. Those preferences must be respected, and a campus disciplinary process that requires police involvement in any way without accounting for the preferences of survivors is ignorant of their needs and safety.
Though RAINN concedes that there are valid concerns about the American justice system, it underplays their impact. The organization does admit that its recommendation for increased law enforcement involvement in investigating campus sexual assault “raises legitimate concerns that must be thoughtfully addressed, such as how to handle victims’ desire to remain anonymous or to decline prosecution,” and the same report briefly mentions the already strained resources of American courts. However, RAINN ignores several serious flaws in the justice system as it pertains to reporting sexual assaults. These complicate the assertion that campus sexual assault should be primarily handled through the justice system.
Chief among these flaws is the issue of rape kit processing, or lack thereof. Not every survivor who reports their assault to the police intends to press charges against their assailant, but for those who do, collecting a rape kit is usually necessary. In the immediate aftermath of a sexual assault, a forensic medical exam can be performed at a hospital by medical professionals trained to work with sexual assault survivors. The exam produces a rape kit, which consists of evidence collected from every part of a survivor’s body. This is an attempt to preserve as much of the attacker’s DNA as possible within 72 hours of the incident. Such exams usually take three to four hours and can be traumatic and invasive processes that survivors have reported can make them feel as though their body is being treated like a crime scene. Besides the fact that survivors may be pressured by police to undergo forensic medical exams or told that they must do so in order for the state to pay for emergency medical care and sexually transmitted infection testing, once the rape kit is collected, nothing may come of the whole grueling and unpleasant process. In the United States, there are currently about 400,000 untested rape kits uselessly gathering dust in police warehouses.
However, tested rape kits often lead to attackers’ arrests. In New York City alone, the arrest rate for rape cases jumped from 40 to 70 percent after the state processed its 17,000-kit backlog in 2001. The harrowing scope of the national rape kit backlog attests to both the lack of resources that state and federal governments allocate to sexual assault investigations, and to the relative lack of gravity with which these cases are handled in the justice system. This backlog takes on a new significance when one considers the estimate that only between 5 and 36 percent of rapes are ever reported to law enforcement officials. This low percentage shows that the justice system has problems beyond its inability to process evidence.
A contributing factor to many survivors’ decisions not to report their rape, as well as further evidence that the justice system is not sufficiently attentive to survivors’ needs, is the widespread mistreatment of the survivors who do so. Because of law enforcement officials’ generally insufficient sexual assault and trauma training, many police officers are not inclined to believe survivors when they report rape or other types of sexual assault. Often, police officers misinterpret behaviors indicating trauma — such as difficulty recalling the attack, trouble retelling events in chronological order or displays of seemingly incongruous emotions — as ones that indicate a false report instead of a legitimate response to an attack. The assumption that survivors are lying influences some police officers to doubt, dismiss or seek to disprove reports of rape, despite the National Center for the Prosecution of Violence Against Women’s estimate that a mere 2 to 8 percent of reported rapes are falsified — hardly enough to assume that any or even most women who come to report sexual assault are lying or confused. This is especially problematic given that the experience of talking to the police itself can cause survivors to feel like they are reliving their assault. Sometimes they even face condescension or harassment from police officers.
Many of these shortcomings are not only indicative of a lackluster justice system, but also of a wider rape culture at work in our society. Rape culture, a term coined by feminists in the 1970s, refers to the theory that we live in a society that gives rapists implicit, and sometimes explicit, permission to assault people. Everyday examples of rape culture include moments in which we joke about, ignore or trivialize rape. Pledges of Yale’s Phi chapter of Delta Kappa Epsilon chanting, “no means yes” and “yes means anal” in 2010 was a manifestation of rape culture. Moments in which we blame survivors for their assault represent rape culture. This tweet written in response to the 2013 Steubenville rape trial, “Has anyone considered that the girl might just be a slut? Surely if she hadn’t consented, nothing would have happened…” embodies rape culture. Perhaps the most terrifying aspect of this mindset is that it’s pervasive, even within the justice system and campus disciplinary processes. Moreover, rape culture normalizes other types of sexual harassment, such as catcalling and the dissemination of derogatory images. Rape culture is analogous to air pollution: It profoundly affects us even if we barely notice its presence.
When a survivor does decide to face an invasive forensic medical examination and skeptical police officers in order to press charges, odds are still slim that the case will go to trial, much less end in conviction or jail time. RAINN reports that out of every 100 rapes, 40 are reported, 10 lead to an arrest, eight are prosecuted, four lead to a felony conviction and only three of those attackers will spend even a day in prison. This speaks to the difficulty of prosecuting rape cases. Often, if the survivor had a forensic medical exam and the rape kit was processed in a timely manner, the prosecution can prove that the defendant had sexual contact with the survivor. However, when it comes to proving whether that contact was consensual, arguments may devolve into the survivor’s word against the defendant’s. This process can often re-victimize survivors as they are forced to rehash their assault in front of a defense that may seek to discredit their testimonies by blaming them or making excuses for the defendant.
Finally, none of this article’s previous discussions even begin to touch on the experiences of male-identified or LGBTQ survivors, survivors of color, survivors who were assaulted by women or survivors who claim more than one marginalized identity. The justice system is removed neither from rape culture nor other societal systems of oppression. As such, it is not always a safe space for people from marginalized groups. That fact alone is enough to deter many survivors from reporting their assaults. The justice system appears either utterly overwhelmed by or willfully negligent towards the pathetic fraction of rape reports, suggesting that it is far from a superior alternative to campus disciplinary processes. It is very likely that colleges and universities are better able to serve the needs of survivors’ varied identities than the justice system, which is often complicit or active in oppressing marginalized groups.
While campus disciplinary systems are often imperfect and lack resources, and while many schools in the US are not yet fully Title IX compliant, college and university systems are smaller and more personal than the justice system. Simply put, they are easier to change. Improving campus disciplinary procedures to the point that they can effectively address sexual assault does not involve state legislation or a constitutional amendment. Given the ubiquity of rape culture, effecting such change is a challenging process, but steps towards it can be regular and immediate.
When a student at Brown files a report of sexual misconduct — a term that includes sexual assault and sexual harassment — the report sets off a chain of events. Emma Hall ‘16, a student who has been through the hearing process, described the report as “a written statement from the complainant depicting what happened and in what way it’s a violation of the Code of Conduct.” After that report is filed, the Office of Student Life launches an investigation. The respondent (the alleged assailant) is notified that a complaint has been filed and he or she is instructed to prepare a statement and gather witnesses. Both students are assigned an advisor to guide them through the process and advocate on their behalf. If the offense is one that might warrant separation from the University, the Senior Associate Dean for Student Life convenes a hearing with the Student Conduct Board (SCB), though there is no assumption of guilt until after the hearings. SCB hearings are adjudicated by a three-person panel: a student, a faculty member and a dean. All hearings are closed and confidential. They consist of opening and closing statements from the complainant and respondent, statements from witnesses and questions from the panel. The panel deliberates in private, then issues a recommendation to the Senior Associate Dean of Student Life. After no more than five days, the dean notifies the involved parties of the decision, who can appeal to the Vice President. The Vice President can then review the decision and affirm, reverse or modify the punishment recommended. That decision is final. Punishments range from parent or guardian notification to expulsion.
Hall says her experience reporting sexual assault through Brown’s disciplinary process was positive. After she was assaulted in November 2012, she found support from Bita Shooshani, Brown’s coordinator of sexual assault prevention and advocacy, and Dean Yolanda Castillo, the associate dean of student conduct. Ultimately, she was successful in her attempt to get some time away from her assailant. He was suspended from campus for two years, which, Hall notes, is longer than the typical suspension for sexual misconduct. As a result, Hall knows her case is a rare one. “I think a lot of it was luck of the draw. I had a very understanding panel,” she says. Additionally, she had a plethora of tangible evidence to present at the hearing — something few other survivors have. Hall also notes that she was sober during the assault and that this fact worked in her favor — though sobriety should not matter when it comes to believing survivors of sexual assault.
There is more that Brown can do to be supportive of her and other sexual assault survivors, Hall maintains, although she expressed gratitude for the two years away from her assailant. Speaking of her assailant, she said, “Right now, for instance, they’re telling me that they’re not allowed to let me know what his registration status is, so I don’t know if he’s choosing to transfer or come back.” She advocates that Brown suspend respondents found guilty of sexual assault until the person they assaulted graduates. This would be a bold move for the University, but it has the potential to provide relief and safety for many students.
Hall is not the only student with ideas about how to change the way Brown handles sexual assault reports. Brown’s Student Code of Conduct is coming up for review in 2014, and that presents an ideal opportunity to improve the campus response to sexual violence. Eager to seize that moment, Lena Barsky ‘14, a column manager at BPR, and Harpo Jaeger ‘14.5 convened a task force of interested students to promote positive, survivor-centered change. Some of the changes they favor involve helping Brown comply with Title IX’s requirement that the school remove all possible barriers to reporting sexual misconduct. Jaeger says he interprets that to include a responsibility for Brown to make reporting and pursuing a sexual assault case “as nondisruptive to the student’s life as possible.” Jaeger elaborates, “It’s really not fair for a student who reports sexual assault to then have to switch their class schedule around or change their room or be displaced in their social networks” in order to avoid their assailant. “Brown has no formal policy on that, now,” he notes, which he believes “represents a lack of commitment to mitigating the impact [of the reporting process] on the reporter.” There are concrete steps the University could take towards developing formal policies; Brown could do well, for example, to formalize its commitment to first asking the respondent to change their schedule or living arrangements after a report is filed, rather than shifting the burden to the alleged victim.
Both Hall and Jaeger note that Brown has a better sexual assault policy than most of its peer institutions. However, as Hall put it, “Our better-than-them sucks. I think it’s important to keep it in perspective that just because we’re better than other schools doesn’t mean we’re okay.” Jaeger concurs, saying, “It really doesn’t matter how well we compare to other schools, because [sexual assault is] still happening, and people [who commit sexual assault] are still walking free, and that’s a problem.”
While Barsky and Jaeger face a challenging fight to see their proposals come to fruition, they have a greater chance of success by working within the college campus — where students can hold administrators accountable — than they would by confronting the vast, opaque and seemingly unyielding leviathan that is the criminal justice system. College sexual assault response systems are imperfect and produce inconsistent results. But given the inadequate state of the justice system, college campuses must be the ones to spearhead efforts to eradicate sexual assault. Although perhaps well-intentioned, RAINN’s proposal of outsourcing the process of addressing sexual assault to a flawed justice system would not only be insensitive to survivors’ needs, but would also exacerbate the existing issues facing the response process.
The fact remains: Each college has its own social, political and bureaucratic culture. Improvements to the college response process will have to be made piecemeal, as any wholesale reform ignores the reality that each college exhibits a unique set of obstacles. But it is on these campuses, despite their imperfections, that the voices of survivors and advocates can ring the loudest, and that the necessary changes to sexual assault response systems can be made the swiftest.