Don’t criminalize college responses to sexual violence

It is no secret that college and university campuses habitually tolerate assault, abuse and harassment. Recent student outcry across the country has highlighted schools’ failures to live up to their Title IX responsibilities: Colleges from Amherst to Arizona State have routinely responded to students’ reports of violence with indifference at best, while others have struck back at survivors with vicious retaliation. Students who are victims of sexual assault thus often spend their college years, a time for growth and study, instead skipping class to avoid running into their rapist in the halls, all the while alienated from a school that has betrayed them.

A few legislators, and now President Barack Obama, have taken notice. Their suggestions that we turn to the police for help, however, have disappointed many anti-violence organizers who are disillusioned with carceral politics. Why? Criminal procedures rarely result in justice for survivors — and instead perpetuate violence.

One such worrisome proposal is a controversial bill introduced on Jan. 16 by California Assemblyman Mike Gatto. If passed, the law would require a university to forward all sexual assault complaints brought to the administration’s attention to the police. The Clery Act currently requires schools to report the number of crimes that occur on campus; but they need not involve the police in any individual case.

Given the many examples of lax university response to reports of sexual violence, the proposed California bill may appear reasonable. I also understand why some survivors, including some of my allies in the student anti-violence movement, support it. But if passed, it could ultimately harm students and ruin what is our last national legal remedy for sexual assault that does not rely on the criminal law.

Title IX prohibits discrimination on the basis of sex in any educational program that receives federal funding; under the law, universities must respond to survivors’ needs to ensure that all students have equal access to education and find just solutions — such as the expulsion of the assailant — that may not resemble the often botched results of reporting sexual assault to the police. Title IX should be improved and better enforced, not coupled with a broken criminal justice system. If correctly applied, it would provide a model for how we can address sexual violence without turning to police and prisons.

The assemblyman’s proposal is based on a misplaced faith in the criminal law that is not shared by many survivors of sexual violence. The first warning sign: Students’ insistence that tying the school system to the police would discourage survivors from reporting. At the urging of organizers, such as Sofie Karasek, a University of California, Berkeley, junior I met through a national student anti-violence collective, Gatto revised his original proposal to include an exception for victims who object to police involvement. (If Berkeley had been required to forward complaints, Karasek told me, she would never have spoken up about being assaulted.)

The bill is better with the exception, and Gatto deserves commendation for responding to survivors’ feedback. But the student demand emphasizes an uncomfortable truth: Survivors know the criminal justice system does not work. Many commentators express shock that fewer than half of all sexual assaults are reported to the police. I am surprised so many come forward. Officers’ skepticism and harassment of survivors are well known, and frequent headlines detailing police violence degrade survivors’ trust.

Additionally, reports to the police rarely lead to trials, let alone convictions. Only a quarter of reported rapes lead to arrests, and only 4 percent of perpetrators are convicted. Survivors struggle to convince prosecutors and juries who expect a neat narrative that conforms to an episode of “Law and Order: Special Victims Unit.” Meanwhile, thousands of “rape kits” remain untested, due to underfunding and institutional apathy.

For some survivors, even a conviction would be a hollow victory: The criminal justice system perpetuates abuse through the violence of imprisonment and, too often, prison rape. This creates an impossible choice for many, particularly survivors in poor and minority communities disproportionately affected by mass incarceration.

Despite these failures, we offer few alternatives. Some victims thus decide to turn to the criminal justice system, and I unequivocally support both their decision and their right to do so. I also recognize the importance of restructuring our criminal system to serve individual victims and our larger communities. But, in the meantime, we cannot fix university adjudicating systems — the process by which students report assaults and schools investigate and respond to such cases — by outsourcing the work to a structure even more deeply flawed and resistant to reform.

Gatto’s well-meaning bill would give schools yet another excuse to shirk their Title IX responsibilities (“The police are on it!”). Equally troubling, criminalizing Title IX may hurt survivors off campus as well. But my greatest worry about the bill is that forcing the criminal justice system into school adjudication procedures will destroy the unique strengths, and possibilities, of Title IX. 

It might seem counterintuitive to turn away from the criminal law to address a crime so heinous. But if we, as an engaged citizenry, allow for the possibility of an alternative, we can build methods that better respond to victims and hold offenders accountable.

Across the country, communities alienated by policing have devised their own grassroots strategies, which sometimes mean group interventions rather than trials, to combat assault. Some survivors have found justice in the opportunity to respond to their assailants while also holding the enabling community responsible, though others have been disappointed by a lack of accountability difficult to foster without the law.

Congress, too, has tried its hand at alternatives to the criminal justice system for survivors. In reaction to the well-documented failure of state courts, in 1994 Congress included a federal civil cause of action for gender-based violence in the original Violence Against Women Act (VAWA). Under this law, which defined violence against women as a violation of their civil rights, a survivor could sue an assailant in court for monetary damages, rather than press charges in hopes of sending him or her to prison.  

It may appear crude to reduce the harm of assault or abuse to a cash value. But for some survivors, that financial award can offer a chance to rebuild their lives, enabling them to move out of an abusive partner’s home, go back to school or pay for counseling. Survivors can also take the initiative to bring a perpetrator to a civil court, whereas a victim pursuing a criminal hearing must first convince a prosecutor to take the case. (Only 1 in 5 rapists reported to the police are prosecuted.) Once a case is brought to trial, the burden of proof in a civil court is lower than it is in a criminal court, making the process more often fruitful. The civil option also offers survivors a chance to be heard in court, an opportunity denied to all but a small fraction of victims who report to the criminal justice system.

VAWA recognized many forms of gender-based violence — the kinds that do not leave bruises or broken bones — that go ignored in most state law. It also encouraged lawyers to consider sexual assault cases, which are rarely lucrative, by pushing courts to order losing defendants to pay for the survivor’s legal fees. Unfortunately, in 2000 the Supreme Court struck down the civil rights remedy part of VAWA on a narrow reading of congressional power (arguing that it was an intrusion into states’ rights). Few states offer workable equivalents. This leaves Title IX, introduced in 1972, the only national civil right to freedom from sexual violence, and our only national model of an anti-violence alternative to the criminal justice system.

Of course, a right on paper is not always a right respected. Currently most colleges and universities fail to comply fully with Title IX. After decades of passive tolerance for schools’ abuses, the Department of Education must finally enforce the law. States can take important steps, too: In recent conversations with Gatto, Karasek has suggested specific requirements for schools — from the provision of rape kits to the hiring of more rape crisis counselors — that she hopes he will add to his bill.

But schools that have followed Title IX offer a hint of the power of noncriminal options to serve victims and communities alike. Survivors are more willing to come forward if they know they do not have to speak to the police. This increased reporting ensures that administrators are able to address threats to the community: The average college rapist rapes six times, so survivors’ comfort coming forward can protect many others.

Many victims’ needs, such as moving dorms or switching seminars, also require more agile tools than those wielded by the criminal justice system. A rigorously trained administrator may be better able to tailor a response plan to a survivor’s particular circumstances than a harried police department with a singular focus on prosecution could. Nancy Chi Cantalupo, a researcher at Georgetown University Law Center, found that the most successful campus violence procedures look least like the criminal justice process.

The same could be true for victims’ options off campus. While some survivors’ needs may always require police responses, others may benefit more from alternatives not yet offered by our legal system. We could make it easier for victims to sue their assailants in civil court, or integrate community models, such as collective interventions and mediation, with civil law protections. If we give it a real chance apart from the criminal law, Title IX could be a powerful model from which to develop these options.

It is possible to create structures that respond to the diversity of American violence to build safer communities, but we first need the courage and creativity to imagine them. Our unwarranted faith in the criminal justice system is a crutch that comforts us in the face of terrible cruelty, but a dedication to our current limited set of tools confines our vision of what we might build.