In May, Duke University announced plans to adopt one of the most extreme college sexual assault policies in history, changing the recommended sanction for perpetrators from suspension to expulsion. That means that whenever a student is found guilty of committing a sexual assault, expulsion is the first punishment the Duke disciplinary committee will consider.
In 2011, the Department of Education issued a "Dear Colleague Letter" to administrators across the United States specifying that, under Title IX, schools are required to protect students from sexual harassment and assault. This letter was in large part a reaction to a jarring statistic from a 2007 National Institute of Justice survey: One in five women are victims of completed or attempted sexual assault in college. The Dear Colleague Letter warned schools to take the issue seriously: "If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects."
This past Wednesday, a legislative committee in California voted unanimously to investigate the sexual assault policies of four universities. In an interview with the Huffington Post, Anthony Rendon, a member of the state assembly who requested the California audit, said, "These incidents are terrible and shouldn't be tolerated, but the reaction, or lack of reaction on behalf of campus officials, was just something that was just as reprehensible." Student victims, newly empowered to assert their rights, have started speaking out in larger numbers, attracting more media attention than ever before. Last year, an unprecedented number of victims from 29 schools filed Title IX complaints, claiming that their university failed to properly address cases of sexual assault. By and large, these students are asking their schools to adopt the same kind of stringent policy that Duke announced this year.
But here's the problem: those outspoken victims represent just five percent of students who experience sexual assault at college. 95 percent of college victims never report what happened to them. And while a policy like Duke's might spell out justice for the vocal minority, it is also likely to keep the majority silent.
This seems counter-intuitive: Shouldn't mandating harsher punishments for perpetrators make a victim feel more supported? Wouldn't that support make her more likely to come forward? Maybe in some cases. But not on a college campus, where 9 out of 10 victims know their assailant.
At college, a rapist is hardly ever a stranger. He's that guy in your 12-person English seminar, or the Vice-President of the fraternity you party with. Almost a third are a "close friend" of the victim. 41 percent of the time, the perpetrator is the victim's boyfriend.
These relationships make it difficult for students to talk about what happened to them. Often, the victim does not report the assault because she's either afraid of ruining the guy's life, or of the stigma and social isolation she will feel if she does.
This is where policies like Duke's get tricky. Duke widely publicized its decision to change its recommended sanction from suspension to expulsion. But at college, where perpetrators are so closely connected to victims, and where the perpetrator's punishment can have such extreme implications on the victim's own college life, that change can actually discourage students from reporting an assault.
"A victim will think, 'I've been with this guy for two years. I don't want him to be expelled,'" said Alexandra Brodsky, a 2012 Yale graduate and Founder of Know Your IX, an organization devoted to educating college women about their Title IX rights, particularly their right to an education free from sexual violence and harassment. "If a mandatory expulsion policy is going to deter someone from reporting, that's a big problem."
I talked to ten women from colleges across the United States who experienced sexual assault in college but didn't report it. When I asked them why they chose not to speak up, they answered in a lot of different ways, but there was one response I heard from almost everyone: I was scared of how his punishment would affect me.
In the third week of her freshman year, a junior at St. Lawrence University - let's call her Stephanie - met a guy through a mutual friend. This guy - let's call him Chris - invited Stephanie over to watch a movie. They talked, and Stephanie trusted him. One of her best friends had been close with Chris in high school, and a few of her girlfriends had met him, too. They all said the same thing: "He's a really nice guy."
The next Friday night, Stephanie went out drinking. After the pre-game, things got a little blurry. The next thing she remembers clearly is waking up in her bed, naked, lying next to Chris. He told her she'd been begging him to have sex with her. Stephanie doesn't remember that.
A few days later, Chris did the "nice guy" thing to do. He wrote Stephanie a letter, apologizing for having sexual relations with her when she wasn't responsive. He said that he didn't realize how drunk she was.
Stephanie didn't consider reporting the incident to any kind of university authority.
"It was October - I was a freshman, trying to fit in and make friends," she said. "If a guy is well-regarded on campus and generally considered a 'good guy,' you get worried that no one is going to believe you. I didn't want to isolate myself by telling people what he did and getting him in trouble."
The victims I talked to were afraid of how reporting a sexual assault would affect them socially at college. They had already been through intense trauma, and didn't want to do anything that might cause them more pain. I heard this hypothetical again and again: If a victim reports and the perpetrator ends up expelled - or even just suspended - that victim risks facing social stigma from a community that doesn't want to believe her.
"I certainly would not have wanted the assault and disciplinary action against him to become public knowledge and the subject of conversation. I suspect that any disciplinary action against him could have made me a social pariah. It just wouldn't have seemed worth it," said a victim who graduated from a small liberal arts college in the northeast in 2013.
Victims are afraid that other students - particularly friends they share with the perpetrator (usually many) - will be angry with them for ruining a guy's life over a crime they see as partially the victim's fault. Especially if drinking was involved, students can be quick to judge a victim for playing some part in what happened.
"A lot of people make judgments about the kinds of women who are sexually assaulted," said another victim, a rising senior at Princeton. "Students at my school might look at my situation and say it wasn't sexual assault because I was "asking for it" by drinking. It takes a lot to stand up to those people and say, 'no, I'm not a whore.'"
When a victim reports her assault, she hands over the reins to university administrators. She has no idea what will happen to the guy who, in more than half of all college cases, is her close friend or boyfriend. That can be scary - especially at a school where the recommended punishment is expulsion.
But the other side of the spectrum can be scary, too. On August 1, Yale published a report summarizing how the university had handled campus cases of sexual misconduct in the past six months. The report revealed that, of the six students found guilty of sexual misconduct (which the university defines as a range of behaviors including rape, sexual assault, sexual harassment, or any other type of non-consensual sexual conduct) since January 1, 2013, only one was suspended. Four received a "written reprimand" - a letter from the administration clarifying that Yale does not tolerate sexual misconduct - but taking no tangible disciplinary action. After the report was published, feminist critics, activists, and Yale students were outraged. And it's easy to see why: a written reprimand hardly seems like an adequate punishment. *
Although policies differ widely at every university, at Yale, students can report their assault to Yale's University-Wide Committee on Sexual Misconduct, or to the New Haven police. If they choose to report to the police, the school is usually not involved in the case in any way. This works the other way, too: if a victim reports to Yale, the case will hardly ever get to the police.
If a victim chooses to report her sexual assault to the Committee at Yale, a Dean will give her two options: write up an informal report of what happened, or file a formal complaint. While the Yale Title IX Coordinator told me that students are in no way discouraged from pursuing formal complaints, several sexual assault survivors at Yale said that they felt pressured by Yale to choose the informal option, after which the perpetrator can receive no formal discipline - only a written reprimand.
"When I reported my sexual assault at Yale, the chair of the Committee didn't outright discourage me from filing the formal complaint, but he was definitely pushing me towards me informal option. He kept reminding me how long the formal complaint process would be. He told me over and over that the informal complaint was the fast and easy way to do it. He said, 'just write up a report and within a few weeks everything will be wrapped up and put away,'" said a sexual assault victim at Yale.
Both extremes--expulsion and written reprimand--in their own ways can deter students from coming forward, either because victims are afraid of inflicting a harsh punishment that will isolate them socially, or because they don't feel that the university will take their case seriously.
So what do we do? Right now, that question is being carefully considered by universities across the country. In the past year alone, Duke, University of North Carolina Chapel Hill, Southern Methodist University, Montana University, Swarthmore College, and others, have been working to revise their sexual assault policies. But will they actually be able to strike a balance between granting fair punishments for perpetrators, and making victims feel comfortable enough to come forward?
Know Your IX's Alexandra Brodsky has been trying to find an answer to this question ever since she was sexually assaulted in her freshman year of college. I spoke with Alexandra at length earlier this month. Here's a summary of what she suggests:
The recommended sanction for sexual assault should be expulsion, like it is at Duke. But (and this is a big "but") before the university assigns any punishment, administrators should check with the victim. They should say, "We would like to expel this student, is that okay with you?" And the answer to that question should hold real weight. At Duke, once the victim makes a formal report to the administration, the case is out of her hands. She has no say whatsoever in the kind of punishment that the perpetrator receives.
This kind of procedure has precedent in the U.S. legal system. In New Jersey, for example, the state statute mandates that victims be given the opportunity to consult with the state regarding the plea. While the victim's preference is not the deciding factor, it is considered when the prosecutor is choosing what plea agreement or punishment is most appropriate.
In addition to asking the victim for her input, and actually taking that input seriously, the administration needs to widely publicize the fact that it considers a victim's wishes. A survivor needs to know that, if she decides to come forward, her voice will be an important factor in the disciplinary decision.
That said, it's important to publicly adopt expulsion as the default punishment. Brodsky concluded by saying that, in her experience, a lot of victims who do choose to report do so because they don't want to see their assailant around campus. One of the women I talked to exceeded the number of absences allowed in her Spanish course because, on her way to class, she had to walk past her perpetrator's dorm. She would see him, have post-traumatic stress, and run back to her room. Because he was on campus, everything was a trigger. It got so bad that, walking around school, she would regularly see large white football players who weren't him and feel anxious and flustered.
It's no surprise that colleges have had so much trouble deciding how to deal with cases of sexual assault. It's complicated and can quickly become a long, drawn-out fight of "he said, she said." However, going forward, colleges need to remember that 95 percent of college victims never report their sexual assaults. They keep the experience to themselves and try to forget about it. But all the victims I talked to agreed: that doesn't work. If you don't talk about an assault, it continues to follow you.
It's easy for colleges to forget about these silent women because they're not making any noise. They're not reporting to the media or filing Title IX complaints. But they're there. For them, colleges should shape their policies around this question: What can we do to empower a victim to come forward and speak out about her sexual assault?
* This post has been updated to include Yale's definition of "sexual misconduct."