There are critics of college reporting options for survivors of campus sexual assault, many of whom believe that the only appropriate reporting option is filing a report with the police if a crime has been committed. It is common to think in such black and white terms if you have never encountered the complexities of working directly with survivors of sexual violence.
It may be simpler to assume that one system and a single response can address every case and the needs of each victim — but it is misguided. It is dangerous. It is reductive. It also contradicts federal law.
The Complexities of Reporting to the Police
There are those of us who have been involved in the efforts to end sexual assault, on- and off-campus, before or since the guidance from the April 2011 Office for Civil Rights Dear Colleague Letter drew national attention to the rights of sexual violence victims in primary, secondary, and higher education. We can tell you about the experiences of survivors who didn’t have enough evidence to press charges. Their assailant was not a stranger, but a partner, friend, or peer. There were likely few or no witnesses. Alcohol or another substance may have been involved, so the narrative and timeline are unclear. The issue of consent becomes complicated by the high standard of evidence in criminal proceedings — “guilty beyond a reasonable doubt.”
Many victims fear they will not be believed or will be blamed by a criminal justice system that, despite having made some progress, still needs to work at adequately training investigators, district attorneys, judges, and jury pools so that they understand the nuances of sexual violence cases. The courage required to tell your story and then learn that your case went nowhere can have a lasting, negative impact. The Rape, Abuse, and Incest National Network (RAINN) states that only 2 out of every 100 rapists ultimately serve jail time, with 68 percent of assaults going unreported.
There are survivors of color, minority religions, LGBTQ identities, and/or low socio-economic statuses, all of whom have complicated relationships with potential institutionalized discrimination among the medical, legal, and law enforcement communities. Some have described their experience of reporting to the criminal justice system as a second rape. Some victims may not wish to see their perpetrator jailed for his crime, as the punishment seems too extreme or severe to them; to feel responsible for incarceration only hinders their ability to recover.
A College’s Responsibility
Even if all of those reasons weren’t enough proof that campus reporting is an essential option for survivors, schools are required to provide an equitable educational environment. Sexual violence is, in almost every case, related to gender; therefore, schools are compelled to prevent, stop, investigate, and remedy gender discrimination that takes the form of sexual violence. The Department of Education’s Office for Civil Rights has clearly mandated that institutions receiving federal funding are required to comply with such provisions.
OCR has set forth a different standard of evidence for schools, that of “preponderance of the evidence” or “more likely than not,” recognizing that the sanctions of suspension or expulsion are not as severe as a prison sentence. This provides a parallel or alternative route for victims to pursue reporting, whose goal may simply be not to cross paths with their perpetrator day in and day out.
While there are flaws in how campus reporting options are executed by many schools, they may be able to adjust and adapt more quickly than the criminal justice system by allocating additional resources for training, professional development, increased advocacy, policy revision, and more. Moreover, educational privacy laws may offer greater protection for victims to remain anonymous than if they pursued legal action and were named in court documents or the media.
No one working in the field of sexual violence prevention in education denies that rape and sexual assault are crimes. Survivors maintain the right to pursue a criminal justice resolution, either in place of, concurrently with, or following a campus-based process.
Our legal system, though, is structured in a way that may deny agency to victims of sexual violence. Serving as a witness to the state's case against a defendant, as opposed to an active and engaged party within a victims' rights–oriented campus proceeding, may not be as empowering an experience. Recovery is about giving survivors back the power and control stripped from them by an assault; the campus response is shifting to better understand and apply such an approach.
It can also take years to pursue a legal solution, with little to no guarantee of a favorable finding. Colleges and universities are required to investigate an assault accusation to completion within a timeframe of 180 days. They can — and should — apply interim remedies and accommodations that allow a survivor to feel as safe as possible and continue to pursue his or her education. Many leaders are even advocating for transcript notation as an additional deterrent that serves to limit the ability of serial offenders to repeatedly transfer from campus to campus.
It is easy for individuals with little or no understanding of the issues surrounding sexual violence to comment on news stories, post on social media, and share their opinions in conversation. It is harder, though, to broaden one’s perspective and try to understand the complexities involved in an act rooted in power, control, objectification, and dehumanization. Rather than silencing victims and limiting their options, we should be focused on creating additional avenues for closure and justice.