Co-authored with Baillee Brown. Cross-posted at Ms. Blog.
There’s one question about campus rape that comes up again and again: Why isn’t the crime handled exclusively by law enforcement? In a perfect world, the legal system would effectively arbitrate this crime, but given law enforcement’s dismal record on sex crimes, schools have no choice but to adjudicate campus rapes in order to comply with federal Title IX law.
Law enforcement is not a viable solution to campus rape because police do a terrible job of holding rapists accountable. According to a recent analysis of Department of Justice data, only 3 percent of all rapists—not just campus rapists—will ever spend a day in jail. Only 40 percent of all rapes are reported to police, and of those, only 10 percent will lead to a felony conviction with slightly fewer seeing the inside of a jail cell.
The numbers are no better when it comes to law enforcement’s handling of campus sex crimes. In 2011, the Chicago Tribune published the results of a study involving 171 campus sex complaints at six Midwestern universities. Twelve of the accused perpetrators were arrested, and only four were convicted. The Tribune concludes that such low arrest (7 percent) and conviction (2.3 percent) rates leave “untold numbers of college women feeling betrayed and vulnerable, believing that their allegations are not taken seriously.”
Law enforcement is hampered in prosecuting rape because this crime is rarely witnessed by a third party. Plus, physical evidence may look similar to consensual sex, the standard of reasonable doubt is high (approximately 95 percent certainty) and, in most states, the burden of proof is on the survivor to prove s/he was raped instead of the defendant proving that s/he obtained consent.
Additionally, trauma impairs the prefrontal cortex, which is crucial to decision making and memory, so survivors may come off as less believable to authorities when they report the crime. Survivors often recount their rapes with little emotion and are unable to remember details or give a linear account of events due to impaired brain functioning.
Furthermore, widely held rape myths work against reporting, arrest, and conviction rates for rape, including the myth that only “stranger rape” and interactions that result in physical damage constitute “real” rape. Prosecutors have broad discretion in whether to prosecute a case or not, and they tend to be more concerned about their win-loss record than pursuing justice in cases that are difficult to win.
One of this article’s authors, Caroline, has worked with more than a dozen campus survivors who have reported rapes to police in recent years. Not a single case resulted in an arrest, and in addition to being a waste of time, the experience often re-traumatized the survivors. A district attorney in California closed USC student Tucker Reed’s case without taking an official statement from her, despite the fact that she had a recorded conversation with her alleged perpetrator apologizing for raping her.
When Morgan Carpenter filed a rape claim in New York, an assistant district attorney told her, “Well, I met him. He’s really cute. Maybe you just had a weak moment and you thought maybe you could get away with it.”
Caroline worked with a survivor who was raped in Michigan in the spring of 2013. She awoke in the middle of a rape in a fraternity house, kicked off her assailant, ran into the street half clothed and called the police. Her rape kit indicated serious physical damage that would not heal for two weeks. The DA refused to press charges, citing a lack of physical evidence.
A recent college graduate in Florida who was raped in the spring of 2014 in her off-campus apartment went straight to the police to report her rape and was told there “was nothing” they could do about it. She then documented the rape through a series of text messages and a recorded conversation in which the alleged perpetrator admitted holding her down, forcing her to have sex, and seeing the “pain on your face.” The DA refused to move the case forward due to a lack of witnesses and physical evidence, and even accused the survivor of “flirting” with the alleged perpetrator by contacting him to obtain his admission of the crime—as she was instructed to do by the police.
After her experience with the police, Columbia University student survivor Emma Sulkowicz said she would discourage other survivors from reporting to law enforcement:
If you want to go to the police, this is what to expect: You’ll be verbally abused. But at least no one will yell at you for not going to the police and getting verbally abused. Just take your pick.
Most schools do a poor job processing sexual assault/rape cases, but the criminal justice system is even worse. In the absence of a viable law enforcement option, schools have to conduct their own investigations and adjudications to be in compliance with federal law. These adjudication processes vary from campus to campus, but they are invariably less formal than a legal investigation.
But schools are uniquely positioned to identify and sanction rapists since the Department of Education has mandated the “preponderance of evidence” standard, the same standard of proof used in civil cases. Some have criticized this standard, but campus rape adjudications are not criminal proceedings, and the stiffest sanction (expulsion) is a rarely used slap on the wrist compared to a felony conviction. Rape on campus is currently treated as harshly as plagiarism. Additionally, perpetrators who are expelled are able to transfer with relative ease, both before and after they are sanctioned, because schools do not report rape as the reason for expulsion on student transcripts. (This is why we need a national database of campus rapists so schools can keep their student body safe by not accepting rapists from other campuses.)
Law enforcement is a terrible option for campus rape survivors because it is ineffective and often re-traumatizing for survivors. But because schools have a national mandate to provide a safe and equitable learning environment, they are in a unique position to best adjudicate campus rapes. Therefore it is incumbent on them to establish fair, effective, and transparent reporting, investigation, adjudication and sanctioning processes that reflect best practices. It is also incumbent on administrators to work with local law enforcement to improve the way both institutions respond to this heinous crime.