Over the weekend The New York Times published a devastating article by Walt Bogdanich about the aftermath of an alleged sexual assault at Hobart and William Smith Colleges in upstate New York.
In it, Bogdanich describes the school’s bungled investigation by a 3-person panel and prolonged suffering of the victim.
After reading the article, one might wonder why the school was responsible for addressing the alleged crime. After all, if an 18-year-old was raped at a town bar, the matter would ostensibly be handled by the criminal justice system
As Emily Bazelon writes in Slate, “… there are supposed to be two parallel tracks. It’s not either/or. In passing and enforcing Title IX, the federal law that’s a shield against sex discrimination in an educational setting, Congress gave schools an independent obligation to investigate allegations of sexual assault and harassment. That doesn’t mean that there shouldn’t also be a police investigation.”
Even so, schools have gradually taken responsibility for handling sexual assault cases over the past 40 years. A 1980 Supreme Court case established that sexual harassment was a form of discrimination under Title IX. Subsequent rulings determined that schools are liable for student-on-student assault, and that they must respond to students’ allegations of assault, Robin Wilson writes in the Chronicle for Higher Education.
In 2011, The Department of Education released a letter that squarely placed responsibility on institutions “to end sexual harassment and sexual violence.”
Schools that fail to respond to accusations of assault are being held accountable as never before; the federal government recently announced that it was investigating dozens of schools for their handling of sexual assault cases.
Universities also fill in for a criminal justice system that often fails to sufficiently punish perpetrators of sexual assault.
“Nationally, police arrest a suspect in only half of the sexual assault complaints they receive,” Marianne Mollman, a Human Rights Watch attorney, noted in a 2o11 Los Angeles Times editorial. “Most of those arrested are prosecuted, but fewer than two-thirds of those prosecuted are convicted.”
Unlike prosecutors and police, colleges must respond to students’ complaints. And colleges have an easier time determining guilt than the courts: University disciplinary procedures only require “a preponderance of evidence” to determine guilt, while courts are held to a much higher standard of “beyond a reasonable doubt.”
In other words, colleges must be 51% sure someone is guilty, while courts must be 99% sure.
Assault victims may also prefer for colleges to take charge: The lower burden of truth and diminished publicity may be more attractive than criminal proceedings that both embarrass and intimidate.
However, there are consequences for schools handling these cases. As Bogdanich’s article shows, schools are not always equipped to deal with such investigations. And students who have been expelled after being found guilty of assault have started suing schools for slander and to regain their diplomas.
A recent Senate report found that 40% of the colleges and universities have not conducted any sexual assault investigations in the past five years. That statistic is particularly troubling given that around one in five female students will experience some form of sexual misconduct during college.