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Reid Exhibits Misunderstanding of Campus Assault

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Editor’s Note: This article contains discussions of violence, sexual harassment, and sexual assault.

April is Consent Month at Oberlin. The College puts in effort year-round to provide workshops and other opportunities to create healthy conversations about sexual assault, sexual harassment, and consent. However, this month is special and receives much more attention and tireless work from the Preventing and Responding to Sexual Misconduct staff and the Office of Equity, Diversity, and Inclusion. The Review’s April 13 issue included a troubling op-ed by Duncan Reid that criticized the “Orwellian underbelly” of Title IX sexual misconduct investigation and trial procedures (“Current Title IX Regulations Deny Accused Students Fundamental Rights,” The Oberlin Review, April 13, 2018). Having read that piece, I worry that it may be necessary to remind our contributors and readers why April is special.

April is National Sexual Assault Awareness and Prevention Month in the United States.

This month is not Oberlin-specific. It’s not by chance that this month boasts PRSM workshops and free frisbees at TGIF. Sexual assault is an unspeakable disgrace of human behavior, and it is widespread. The only greater tragedy than its prevalence in reported incidents is that the unreported incidents of sexual assault far outnumber reported ones. The Department of Justice conducted a study on college campus sexual assault over the course of almost 20 years, and between 1995 and 2013 it found that for every five incidents of sexual assault against college students, only one is reported to police. It takes bravery and a great deal of resilience to actually go through with the proceedings.

Title IX acts to protect gender equality in higher education by providing an avenue to challenge gender discrimination. The operative text reads that no person “be denied the benefits of, or be subjected to discrimination” in an educational environment that receives federal aid. I certainly hope it goes without saying that survivors of sexual violence may struggle to reap the full benefits of a robust education. In fact, the Department of Veterans Affairs states that 94 percent of female rape survivors experience Post Traumatic Stress Disorder symptoms in the weeks following their attack, and about a third reported that symptoms remained even nine months later. According to the National Comorbidity Survey, 9.7 percent of female North Americans experience lifelong PTSD, but it develops in over 30 percent of sexual assault survivors. This disparity proves beyond a reasonable doubt that sexual assault is profoundly impactful on the lives of survivors, who deserve to be taken seriously.

The Rape, Abuse, & Incest National Network — the most prominent anti-sexual violence organization in the country — reports that compared to all women, women in college are three times more likely to suffer sexual violence. If you’re tempted to clutch your pearls and point to the “bias of the source,” I recommend you ask yourself exactly what bias RAINN has that is so offensive. College can clearly be a hotbed of sexual misconduct, which the offices of Title IX can address.

Unfortunately, colleges have demonstrated untrustworthiness when it comes to giving accusers the enshrined privilege of taking reports of misconduct seriously. The law agrees. In 2008, the United States Court of Appeals for the Ninth Circuit held that Arizona State University was liable under Title IX when it chose to readmit a student whom they had expelled for multiple instances of severe sexual misconduct. In a truly surprising turn of events that shocked no one, he sexually assaulted another student within months of readmission. ESPN reported that university administration officials had deleted emails relevant to the case with knowledge that the plaintiff was filing a lawsuit.

Expressions of callousness and ignorance about rape and sexual assault are a dime-a-dozen in our society. There is nothing new about bending over backward to find arguments that college rape investigations are too stringent or that administrations too harsh with accused offenders. However, I have heard few things so outlandishly insensitive and ill-informed as the suggestion that, in cases of sexual violence, the accused should cross-examine their accuser. The April 13 Review issue published that suggestion, because that’s what the Review does; it publishes submissions of all viewpoints, even ones whose substantive value have a half-life of how long it took to imagine them.

I believe that the right to a fair and speedy trial under the Sixth Amendment intends to protect the accused from indefinite incarceration and the accuser from indefinitely-postponed justice. I think it’s a crucial piece of our justice system that is too often neglected, especially in immigration law. That said, in cases of campus sexual misconduct, if a speedy trial puts a recently-assaulted person on the stand under duress from the accused, it can severely inflame trauma.

Sexual assault cases do indeed have an “enforcement” problem, though it isn’t necessarily in Title IX’s realm. The Federal Bureau of Investigation’s 2015 National Incident-Based Reporting System disclosed that only 310 of every 1,000 rapes get reported to police. Of those, only 11 rape cases get referred to prosecutors, and only six will result in incarceration — that’s six incarcerations for every thousand rapes. In the same report, the FBI states that there is an average of 321,500 victims every year. As Reid wrote in his March 9 op-ed: “That doesn’t add up.”

There are plenty of problems with college responses to sexual assault. Title IX can be difficult to navigate, bureaucratic minutiae can extend timeframes, and many survivors simply don’t feel comfortable with the system. Title IX offices also do not have the investigative tools or resources at their disposal that police authorities have, and the closed-door style of their procedures can be unsettling, even for the victims. Schools are often unwilling or unable to provide appropriate accommodations for survivors who don’t pursue disciplinary action but want to minimize interaction with their attacker.

Title IX and college responses can resemble less of an iron fist and more of a soggy cotton glove.

Suspension of civil liberties is always a concern. Due process is a critical part of our criminal justice system. And the suggestion that an alleged rapist should be able to question their accuser illuminates the misplaced priorities and fundamental misunderstanding Reid has of the problem at hand. Title IX offices are not courts. They are vehicle for academic disciplinary action. At the end of the day, the numbers don’t lie. Campus sexual assault is rampant. Perhaps it may be more worthwhile to focus on preventing sexual assault than coddling the accused.

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3 Comments

3 Responses to “Reid Exhibits Misunderstanding of Campus Assault”

  1. Vincent Morrone on April 28th, 2018 9:26 PM

    We’ve all seen the way many colleges, including your own, handle many Title IX cases in ways that are unfair. Yes, sexual assault is a horrible crime, and as such it should be handled by a criminal investigation whenever possible. However, colleges must have strong polices in place when the accuser doesn’t wish to go to the police.

    No, a person accused of rape should not be allowed to directly cross examine the person that has charged them with rape, but a form of cross examination must be allowed. Most schools don’t allow lawyers to participate in these hearings, but an advocate or lawyer should be allowed to pose questions in a non confrontational way.

    You acknowledge that colleges don’t have the ability of police, which is true. You can’t issue warrants, put someone under oath, or subpoena witnesses, yet you insist even now that you can use a higher standard of proof, use the low preponderance of evidence standard. A higher standard of evidence would compensate for the lack of police ability. There’s a case playing out right now in court over a suspension from George Washington university where one of the big pieces of evidence was a phone call between the accuser and a friend. Through discovery, we have learned the phone call never took place. While it’s true the school couldn’t force the students to reveal their call logs, they never bothered to ask. Now the accused student has lost the ability to go to a graduate school that had accepted him because they won’t give him his diploma. They could have settled the lawsuit based on the new knowledge, but they refused even though it proves the accusing student lied.

    The secret hearings aren’t secret to protect your students, but to protect the college. Colleges should have a record of every interview, piece of evidence, and hearing. This way, OCR can easily review what was done and how. And a student suspended or expelled, or a student who feel the college favored the accused, can use that in a lawsuit. Colleges hide behind FERPA to protect themselves.

    You seem to casually dismiss lack of due process, but there have been cases where students have been assaulted and then suspended when the person who committed the assault filed a charge. Hofstra University had a case go against them in part because they took the word of the accuser saying the male student had threatened to hit her, with no evidence to back it up. At the same time, the female student admitted to hitting the male student, slapping him across the face to wake him and backhanding him in the groin. This is what instigated the argument. She also broke the no contact order. This isn’t the only case.

    What assurance does an accused student have that a college such as yourself will conduct an investigation in an impartial and fair way?

    This is a discussion that needs to be had. One can loath sexual assault and want to do everything to prevent it, while at the same time protecting the rights of the accused. A bill of rights for accused students would help.

    The right to know what the charge is, who made it, when it happened and what policy was violated.
    The right to know the evidence before the hearing.
    The right to have an impartial investigator, one that isn’t trained to ‘start by believing,’ but one who is neutral.
    The right to some sort of cross examination when there is a dispute. (Again, direct cross doesn’t mean allowing the accused to ask question, but an advocate.)
    The right to have an appeal heard by an independent party.
    The right to have all evidence, and transcripts reviewed by OCR and not need discovery to get them (With names redacted) into court.

    Accommodations should be made to both students, and an accusing student should be allowed academic and protective accommodations even if they don’t want to pursue charges.

    If the evidence is low, but on the side of the accuser, the school can force the accused to withdraw without notating their transcript that they committed sexual misconduct when they know there’s nearly a 50% chance they got it wrong.

    Also, if a student is found to have lied in a Title IX case in an attempt to get a student kicked out (In other words, a face claim with the intention of preventing another student from getting their education, which is the reason why Title IX exists) then there should be a sanction going the other way. Jackie from UVA was never sanctioned in anyway.

    Again, if you follow these cases, and I’m sure you do, you see that more and more colleges are coming out on the losing end of these lawsuits. Many are settling the cases before a judge can rule, because they know they didn’t do a good job, which opens up the possibility of an rapist being expelled and then returning to the same campus because the college did such a poor job in due process. Almost always when there’s a lawsuit, colleges claim to stand by their procedures, yet often try and get the complaint dismissed and settle if they can’t.

    One of your administrators said: And for the student who is accused, the question is also important and needs to be met I think equally with respect and dignity, but my question for that student is: What, if anything in your conduct, are you willing to be accountable for and how can you be responsible for the harm you’ve done to others, if in fact that was the result of your conduct? Hearings are a tool or a technique for answering those big questions.

    That would seem to indicate that they believe if you’re accused, you’re responsible for some sort of hurt.

    Colleges can do better, and I’d urge Oberlin to start being one of the colleges to do better.

  2. Gregory Smith on April 29th, 2018 3:36 AM

    So many flaws with this piece it’s hard to know where to start.

    First the claim that only six of every thousand rapes results in a conviction. These 1000 cases are CLAIMS of rape, not rapes. The reason many of them are not prosecuted is because an investigation concludes the claims were not credible. Of course many of these cases are actual rapes, but lack sufficient evidence to secure a conviction. But many are also false accusations, and it’s dishonest not to acknowledge this fact. Furthermore, the six out of 1000 figure actually falls short (by 5 convictions) of the principle that its preferable that 1000 guilty walk free rather than punish a single innocent.

    Second, the belief that because many victims are reluctant to report an assault, there must be something wrong with the system. Obviously, some victims are reporting under the existing system, so perhaps its the victims who need to be re-educated so that more of them will report, rather than trying to change the system to accommodate their fears.

    Third, the idea that someone alleging a crime should somehow be able to secure a life-destroying conviction without having the truth of their allegations tested through cross-examination is beyond ridiculous. It’s ridiculous with respect to any alleged crime, but particularly so in cases of rape, which by its nature frequently involves conflicting but uncorroborated narratives concerning a sexual interaction. There is no way imaginable that anyone can be justly penalised on the basis of allegations that have not been subjected to the most rigorous possible testing for credibility. It’s troubling and insulting that anyone would advocate for a system in which this is even a possibility.

  3. Steven Kennedy on April 30th, 2018 9:56 AM

    Rape is a crime. It stands to reason that before someone is found to have committed a crime, he should be afforded basic due process, which has long included the right to confront and cross examine his accuser. The consequences for one “convicted” of rape are substantial, even where incarceration is not involved– as numerous courts have noted in rejecting flawed Article IX proceedings. Most Title IX Administrators start with a strong presumption in favor of the accuser– but in too many of these cases evidence that was withheld from the accused has subsequently surfaced to cast considerable doubt on the accusation. The goal ought to be a level playing field for the accuser and the accused. As Title IX procedures currently stand, it is far from that.

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