In a New York Times weekend op-ed, Yale University law professor Jed Rubenfeld offers an insightful and reasonable read on the state of sexual assault on college campuses — and what can be done to fix the problem.
As Rubenfeld notes, college sexual assault policies are often criticised for both “failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.”
Additionally, college students seem to be reluctant to come forward to report sexual assault to their schools. By most estimates, about 5% of student sexual assault victims come forward, significantly less than the national average of rape reporting.
Currently, schools appear to be focusing on changing how they process sexual assault claims, in part to encourage more student victims to come forward. Recent changes to many colleges’ sexual assault policies such as affirmative consent and a lowered burden of proof are not necessarily preventative measures, except as a deterrent for students who might be afraid of the potential consequences — which, Rubenfeld notes, aren’t particularly harsh, compared with jail time.
However, Rubenfeld writes, “if schools are genuinely interested in preventing sexual assault, they need to overhaul how they think about assault and what they do about it. Prevention, rather than adjudication, should be a college’s priority.”
Here are a few suggestions that Rubenfeld argues will help reduce and prevent campus sexual assaults:
1. Lower The Drinking Age
According to Rubenfeld, many college sexual assaults may be connected to current campus attitudes about alcohol, which are arguably derived from the change in the legal drinking age from 18 to 21. Since 1984, when the federal government enacted a mandatory 21-year-old drinking age, “college alcohol policies have been a mockery,” he writes.
Now, drinking has become more dangerous for students, as it has moved away from college sponsored events with security and oversight. “Prohibition has driven alcohol into private spaces and house parties, with schools largely turning a blind eye … Ideally, we should lower the drinking age so that staff or security personnel could be present at parties,” according to Rubenfeld.
2. Stress Bystander Intervention
Rubenfeld highlights one of the most prominent trends right now in college sexual assault prevention — “bystander intervention” — which trains students to identify and intervene in potentially harmful situations, particularly when alcohol is involved. The new emphasis on bystander intervention is seen as a major shift in teaching students to prevent sexual assault, not just report them after the fact, and has been identified as likely the most effective way to protect severely intoxicated students’ safety.
“At the same time,” Rubenfeld writes, “students need to be told clearly that if they are voluntarily under the influence (but not incapacitated), they remain responsible for their sexual choices.” He stresses in his op-ed the need to educate students on the difference between intoxication and incapacitation — the tricky to define line that determines if a student was likely aware of their actions.
3. Link Campus Proceedings And Law Enforcement
Rubenfeld writes that “Rape on campus is substantially enabled by the fact that rapists almost always get away with their crimes.” More specifically, while they may be punished for campus policy violations and even expelled from their schools, students rarely face a court of law.
Notably, college students are found “responsible” for sexual assault, not “guilty” — a key difference that separates campus proceedings from law enforcement.
“If college rape trials become a substitute for criminal prosecution, they will paradoxically help rapists avoid the punishment they deserve and require in order for rape to be deterred,” according to Rubenfeld.
Below, Rubenfeld expands on why he believes the two processes should be combined, and how colleges could help link them:
University proceedings may be exacerbating the fundamental problem: the fact that almost no college rapists are criminally punished — which they will never be if the crimes are never reported to the police …
But colleges can’t just leave sexual assault victims to the criminal justice system, in part because most victims are so reluctant to report assaults to the police. That is why integrating college rape hearings with law enforcement is critical. New training for the police and prosecutors is essential, too. Special law enforcement liaison officers who know how to respectfully receive and vigorously act on sexual assault complaints should be present in every college town. They should be at every college sexual assault hearing. The rights of the accused have to be protected, but whenever there is evidence of a rape on a college campus, the police need to know.
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