Two Ways to Fix How Colleges Respond to Sexual Assault

Improve the hearing process, and let victims speak with peer counselors they can trust


The statistics in the White House’s recently released report on rape and sexual assault are unsettling, but not unfamiliar: If a woman goes to college, she has a one in five chance of being sexually assaulted while she’s there. Only 12 percent of those women ever report their assaults to law enforcement.

Just a few hours after the report came out last week, President Obama issued a memorandum, creating a task force to deal specifically with issues surrounding sexual assault on college campuses. In 90 days, this task force will make recommendations for how institutions can best prevent and respond to sexual assault, and punish offenders. They are charged with creating an environment where victims feel supported—where punishment is fair but also proportionate to the severity of the crime.

This isn’t going to be easy. Responding to sexual assault—particularly on a college campus—is murky business. Between 80 and 90 percent of campus sexual assaults happen between two people who know each other. That means that a typical college victim is going to feel a lot of different emotions. She might want the perpetrator off campus so she doesn’t have to worry about running into him on the way to class. But, at the same time, she might be scared of how their mutual friends will react when he’s in danger of expulsion. It’s not uncommon for a victim to report her assault, only to backtrack a few days later, begging administrators not to take the case any further. All this can be frustrating for university officials. If there is no one clear, best way to help all victims, how can they be expected to draft effective policies?

Over the next 90 days, the White House task force will be trying to navigate this delicate situation—creating programs and policies that will work for the vast majority of victims, perpetrators, and college administrators. The task force will talk to people with all kinds of perspectives on the issue: school officials, parents, victims, athletic coaches, fraternity representatives, student activists, law enforcement agencies, and sexual assault crisis counselors.

“I think the task force will tell the Department of Education to put penalties on schools if they don’t comply with certain policies,” said Alexandra Brodsky, Founder of Know Your IX, an organization devoted to educating college women about their Title IX rights. “I can also see them issuing a set of ‘best practices.’ These wouldn’t be laws, but firm suggestions for how sexual assault cases should be handled by colleges.”

Here’s what the task force needs to understand when it’s coming up with those best practices: Sweeping policies that crack down hard on perpetrators often have the unintended result of discouraging victims from coming forward. Administrators want to be seen as taking an aggressive stance toward sexual assault offenders. But that’s not always the most effective method. Take this example: Regardless of the victim’s preference, many schools (including Columbia and Barnard) have begun requiring faculty and staff to report all sexual assaults to the administration. While this will empower some victims to file formal complaints, many more who are unsure of what they want will inevitably keep their stories to themselves, afraid to share something they might one day regret. Another popular move by college administrators is to make expulsion the standard punishment for all perpetrators found guilty of sexual assault. Again, this will alienate a lot of victims. Many want to figure out how they’re feeling but are not quite sure how and if they want to take formal action.

How can we create an environment that encourages the most victims to open up about what happened to them? These are two suggestions I have for the task force.

First, it should require colleges to control what kind of things witnesses are allowed to talk about in a sexual assault hearing. Today, most colleges and universities allow witnesses to discuss character evidence. That means they’re allowed to talk about the character of the people involved in the case. They can say, “He’s a great guy—he would never do something like this,” or, “She get’s drunk a lot—this isn’t the first time something like this has happened.” This kind of character evidence would generally not be allowed in a state or federal court. But because a university disciplinary board is not required to follow the same “rules of evidence” used in a court, character evidence is permitted and often (whether consciously or unconsciously) taken into consideration. If a victim knows witnesses might bring up issues like sexual history or drinking habits in front of a panel of staff and fellow students, she’ll be much less likely to pursue a hearing.

Lucinda Garthwaite, an associate dean at the University of New Hampshire who helped the school develop its judicial system for sexual assault cases, explained that more evidence comes out in a university hearing than in a civil case. That’s why, when she worked at UNH, she would sometimes suggest that students entirely bypass the university conduct system.

“In a university hearing, witnesses were allowed to bring in a lot more evidence. That evidence could be damaging. At UNH, sometimes we didn’t want to do a university case because it might compromise the civil case,” said Garthwaite.

Another way to encourage more victims to report assaults: Provide them with people they want to talk to. By now, most colleges and universities have a professional, confidential counselor who is trained to handle cases of sexual assault. Many also have some kind of peer-to-peer sexual assault counseling program. The task force should recommend a new kind of sexual assault counseling initiative that brings these two together: counseling that is both confidential and peer-to-peer.

Today, most peer counselors at universities lack something called legal privilege. That means that, if a victim talks to a peer counselor about her assault, that counselor can’t promise confidentiality. If the counselor is subpoenaed in court, she would be legally obligated to recount everything she knows about the victim’s case. That’s scary for a victim to hear. The victim is looking for someone she knows she can trust. She doesn’t want to have to worry about her counselor sharing her story with a panel of school administrators and her own peers.

But at the same time, students do want to talk to other students–particularly about sexual assault. That’s because the vast majority of college victims don’t call themselves victims right away. They wonder how much of the night was their fault. Did they drink too much? Were they flirting? When they asked the guy to walk them home, was that understood as an invitation? Fellow students are the ones best equipped to answer these questions. They understand the social context that breeds campus sexual assault. When a peer counselor—rather than a professional therapist—is the one to say, “No, this was not your fault—you should not feel guilty,” a victim is much more likely to believe it.

The White House task force should recommend all colleges adopt programs that qualify students for legal privilege. To qualify, an advocate needs to go through a certain amount of training by a federally recognized organization. Student counselors can easily become confidential resources. Their colleges just need to have programs in place that help them get there. Rutgers University is a great example. There, all students over 18 are eligible to become confidential sexual assault advocates. After completing a 60-hour training, the student counselor has the legal protection she needs to promise any victim that her story will stay between the two of them.

In 2011, the Department of Education issued the “Dear Colleague Letter,” emphasizing that, under Title IX, schools are legally obligated to protect students from sexual harassment and assault. The task force needs to get more specific. How can colleges and universities best protect students? The first step is encouraging more of them to speak up.