The Laws Targeting Campus Rape Culture

By Tyler Bishop, The Atlantic

13 September 15

A new federal policy seeks to tackle the college sexual-assault problem—but can it change the status quo?

etween now and the time that college students pack up for Thanksgiving break, more sexual assaults will happen on campuses nationwide than during any other time of the year. The “Red Zone,” as this period is commonly known, is a time when new students are adjusting to the novelty and freedom of college life—and are thus particularly vulnerable to sexual assault. Now that a new academic year is starting up, though, some activists and administrators are hopeful that significant changes are underway as a result of new regulations designed to force schools to proactively confront sexual violence on campus.

Some provisions of the federal Campus Sexual Violence Elimination (Campus SaVE) Act, the legislative outcome of years of increased attention and activism, officially went into place in July. The Act was sponsored by Democrats Robert Casey (Senate) and Carolyn Maloney (House) and signed into law by President Obama in 2013 as part of the reauthorization of the Violence Against Women Act. It was hailed as a major win by many activists and covered extensively in the media. This year, as the Act is now in place, there is much less fanfare—but colleges across the country are nonetheless devising new ways to comply amid ongoing debates surrounding the issue.

Campus SaVE’s stipulations go beyond what was outlined in similar federal guidelines issued by the Department of Education in 2011: Rather than recommending that colleges develop educational programming, the law explicitly requires all schools to offer “primary prevention and awareness programs” that reduce the risk of sexual assault. The idea is that all students and faculty members should be held accountable for the elimination of sexual violence on campus. In these programs, participants learn what’s defined as consent, for example, and how to recognize signs of abusive behavior. It also stipulates some minimum standards in campus judicial proceedings (for both the defendant and the accused) and mandates that institutions specify the number of dating- and sexual-violence claims filed in their annual crime reports.

“[The act] highlights dating violence, domestic violence, and stalking. These are crimes that we know are happening on our college and university campuses. So it requires colleges to actually have specific policies, protocols, and responses,” Allison Kiss, the executive director of the Clery Center for Security on Campus, told me.

What’s particularly novel about Campus SaVE’s education requirements—and what many groups, including The White House’s It’s On Us campaign, tout as the key strategy—is its inclusion of bystander-intervention, the model that emphasizes the responsibility of those standing witness to potentially problematic situations to interrupt in whatever way possible. “Bystander intervention is so natural for this population because when sexual assaults happen on campus they’re typically student on student,” Kiss said. “And they’re happening when administrators aren’t around.”

Traditionally, schools across the country have invested astonishingly disparate amounts of resources in sexual-assault awareness and prevention. Some schools, like Moraine Park Technical College, for example, are launching programs for the first time this year, while others, like the University of Texas, already had Campus SaVE-esque policies prior to its passage. It seems that few institutions, however, fall into the latter category, according to Know Your IX policy coordinator Alyssa Peterson, who noted that the government has never really had a streamlined way to comprehensively track schools’ sexual-assault programs. A major goal of Campus SaVE was to implement minimum standards to make policies more uniform nationwide and ensure that more people on more campuses gain exposure to the complexities of the sexual-assault problem and the most effective means to address it.

But no act of Congress is going to be a cure-all to higher education’s sexual-assault problem. From devising programs and approaches that adequately educate and prepare students to balancing fairness in campus judicial proceedings, there are many strides to be made and questions left to be answered.

To address the first of these concerns, Kiss said, institutions must work toward ensuring the prevention-and-awareness education is ongoing throughout students’ time in college. The reality is that a one-time program at the beginning of the college experience—a time when students can become overwhelmed by the amount of new information being thrown at them—may prove to be ineffective or forgotten. Campus SaVE does instruct colleges to invest in ongoing prevention and awareness strategies, but the challenging part is figuring out how to do that. “The parameters of [the Act] are broad,” Peterson said, explaining that it lacks specific prescriptions on some requirements. The Department of Education has crafted guidance to complement the Act’s mandates, but adapting new regulations into campus-specific policies can be tricky for school administrators.

That’s where organizations like Know Your IX, the National Alliance to End Sexual Violence (NAESV), the Clery Center, and dozens of other national and local advocacy groups come into play: They give higher-education institutions access to various resources, such as simplified, common-language interpretations of relevant policy and on-call experts who can provide direction. Their ultimate hope is to help schools implement the most effective policies that will reduce the risk for violence on campus.

But those efforts, too, come with there own challenges. The work of many these organizations is being frustrated by some new legislative battles on the hill, according to Peterson, who oversees Know Your IX’s lobbying efforts. Two pieces of legislation, the Fair Campus Act and the Safe Campus Act (sponsored by Republican House representatives Pete Sessions and Matt Salmon, respectively) were recently introduced in congress in response to concerns among some lawyers and legislators that the current approach to collegiate sexual-assault adjudication—which is based on the DOE Office for Civil Rights’s (OCR) widely cited “Dear Colleague” letter from 2011— fails to provide defendants adequate due process.

The letter has directed schools to adopt a “preponderance of evidence” standard, which simply requires that evidence show that it’s more likely than not that the respondent committed the offense. Campus SaVE does not codify this standard into law (as a result of opposition some Republican lawmakers), but OCR policy is binding for schools that receive federal funding. Campus SaVE did increase the responsibility of schools to fairly adjudicate claims by including language that allows both parties to have counsel present and requires the arbitrator to have undergone specific training for handling dating and sexual violence claims.

But proponents of the Fair Campus and Safe Campus acts don’t think that’s enough. Because college rape cases are almost never taken to criminal court—like the Vanderbilt University trial I reported on while a student there—they want to see more stringent protections for students who face penalties from their college. Both bills seek to more closely align adjudication standards with those applied in the criminal-justice system: Each would do away with the preponderance-standard mandate—allowing schools to individually choose what threshold to apply—and allow both the defendant and complainant to have access to all evidence being used in disciplinary hearings. And the Safe Campus Act would go as far as to prevent colleges from investigating claims of sexual violence unless the complainant also reports to law enforcement. (Currently, schools must investigate every claim via a Title IX coordinator on campus based on the information they receive, whether or not law enforcement is involved.)

From a legal standpoint, initiatives seeking to bolster the rights of the accused seem to be getting at least some traction: A judge in Los Angeles recently stayed the expulsion of Bryce Dixon, a University of Southern California student and football player accused of sexually assaulting a team trainer last October. “USC’s investigator acts as police, prosecutor, and judge,” Dixon’s lawyer said in a statement after the judge’s ruling. And according to the American Council on Education, it is unclear whether the OCR’s preponderance standard would be upheld as a legally binding standard if challenged further in the courts.

The bills have also garnered the support of many fraternity and sorority groups, such as the North-American Interfraternity Conference and the National Panhellenic Conference; Greek life has faced significant scrutiny amid perceptions that the party culture they promote puts students at greater risk of sexual assault. And the widely publicized and discredited Rolling Stone feature, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA,” has been cited by some proponents of the legislation as an example of why giving the benefit of a doubt to assault victims can undermine the rights of the accused.

But Katie Hanna, a board member with NAESV, points to the chilling effect legislation like the Safe Campus Act could have on survivors. She cited a recent National Alliance to End Sexual Violence survey of survivors, which found that “if there was a mandatory requirement to report to law enforcement, few survivors would report. And fewer survivors would get the support they need on campus.” She and other experts emphasized the importance of allowing a victim to decide for her or himself whether to go to police, which can be a severely distressing process. And Kiss added that schools have methods in place for recourse in the rare case that an unfair ruling is reached.

Some advocates worry that combatting mandatory-reporting rules on campus has been taking energy that could be used to help schools effectively implement sound policies that are in line with Campus SaVE, and urge for more resources to be put into oversight agencies like the OCR (which currently has over 130 active Title IX investigations pertaining to schools’ handling of sexual misconduct—a number that continues to grow despite a depleting staff). Peterson said she would much rather see advocates focusing on those issues than fighting legislation that she said most survivors and advocates strongly oppose. “It’s really draining our ability to fight for equal rights for people on campus in a proactive way because we spend so much time educating people about why the criminal-justice system as it’s been for 30 years has failed survivors and how it will decrease reporting.”

As these legal and legislative tussles continue, the 2015-16 year is underway at many schools that are looking to find a variety of ways to make federal regulations work on their campuses. Some colleges are already seeing reports of sexual assault—a harrowing reminder of the progress still left to be made.