Pressured by Activists and Legislators, Colleges Grapple with Rape on Campus By Cynthia L. Cooper

Yale law student Alexandra Brodsky said they want immediate police Pennsylvania, which conducts train- stepped into the U.S. Senate Dirksen engagement or required reporting of a ing for college administrators. "Higher Office Building last summer to par- campus sexual assault to the local police education is held to a higher standard, ticipate in a roundtable on campus by campus authorities or a complainant. and it should be," Kiss adds. sexual assault convened by Sen. Claire During her turn to speak, Brodsky said Although few close to the issue McCaskill (D-MO). Brodsky, campus officials discouraged her from challenge whether sexual assault needs an activist, rape survivor, and found- going to the local police after she was to be better addressed on campuses, ing codirector of the influential raped, but she rejects the mandatory differing opinions emerge on how best website KnowYourIX.org, slept at a involvement of local police. "I would to tackle it. friend's apartment the night before and have never come forward if that had Should policy refer to a "victim" prepped in a nearby D.C. cafe. been the only option," she said. or an "accuser"? Should "consent" At the roundtable, she sat with col- A whir of activity during the past be redefined as an affirmative "yes"? lege administrators, justice advocates, 15 months—an Obama task force, What standard of proof should be used and members of Congress. "It was so headline coverage, state and federal in student disciplinary hearings? Are remarkable for me to remember that I legislative proposals, a documentary complainants entitled to have an advo- was an undergraduate only four years movie, online advocacy, and student cate at disciplinary proceedings—and earlier and we couldn't get a meeting protests—catapulted campus sexual what about the accused? with our own school president. And assault from a simmering concern to And the ultimate question:What now we were being heard," says Brod- cauldron-bursting urgency. will bring about lasting change in end- sky, currently a rising 3L at the New "We're really starting to see an ing sexual assault on campus? Haven, Connecticut-based school. investment of resources from college Campuses are grappling seriously The issue at hand—if and how local leadership. What we've seen is a para- with these questions—and, suddenly, police should be involved with campus digm shift," says Alison Kiss, executive legislatures are, too. sexual assault complaints—did not have director of the 25-year-old Clery Cen- "Institutions are so used to consensus. Some roundtable participants ter for Security on Campus in Wayne, being insular. So many campuses are

4 Perspectives ©Evy Mages/Getty Images

struggling with what to do," says San- by prevention, training, investigation, as a lawyer that I would see it. Student dra Henriquez, executive director services and protection for survivors, and activism has helped to bring this to the Sen. Claire of the California Coalition Against prompt and fair adjudication. forefront. And you have an administra- McCaskill (D-MO) Sexual Assault in Sacramento, which OCR intensified attention to tion that wants to make college a safe (center) spoke as a released a student-advised report on sexual assault on campus with an place for people." group of bipartisan sexual assault in November 2014 rec- important "Dear Colleague Letter" in senators held a ommending survivor centeredness, 2011, putting federally funded educa- Movement Toward Change news conference community collaboration, and com- tional institutions on notice that they No single force has moved the nee- to discuss the prehensive prevention. would be held to rigorous standards. dle, but slight tremors are softening the reintroduction of Student activists, including sex- ground. In the past year, major colleges a strengthened Urgent Action but Longtime ual assault survivors Annie Clark and and universities have revised and version of Concern Andrea Pino (pictured, opposite)— implemented new campus policies. the Campus The problem of sexual assault on both featured in the new documentary The Massachusetts Institute of Accountability and campus is not new. In 1986, Jeanne film —filed Tide Technology (MIT) in Cambridge Safety Act, while Clery was raped and killed by another IX complaints in 2013 on the poor became the first high-profile institu- assault survivors student at Lehigh University in Beth- handling of their cases at the Univer- tion to conduct a sexual assault campus and advocates lehem, Pennsylvania. In 1989, a New sity of North Carolina at Chapel Hill. climate survey, releasing the first set of Andrea Pino (2nd York Times article raised an alarm about Founding an online site, End Rape on results in October 2014. from left) and Annie a 33 percent increase in "acquaintance Campus, they helped students at other Sarah Rankin, MIT's Tide IX coor- Clark (right), looked rapes and sexual assaults" at a state uni- colleges and universities do the same. dinator, says this survey was launched on at the Capitol versity in California. Lawyers also filed claims; some sued in early 2014 when newly appointed on February 26 in What's more, in 2009, the National schools. By the end of 2014, 102 Tide Chancellor Cynthia Barnhart asked Washington, D.C. Institute for Justice, based in Washing- IX complaints about sexual assault on for help in understanding the issue of (photo opposite). ton, D.C., released a comprehensive campus were filed, compared with 19 sexual assault on campus. "It's MIT, analysis indicating that one in five in 2011; in the first quarter of 2015, 51 right? We're a place of inquiry, and data Photo below: college women is a victim of an already had been filed, according to a driven," Rankin says. Cynthia L. Cooper attempted or actual sexual assault. That Department of Education letter to Sen. Collecting data seemed like a natu- same year,"Sexual Assault on Cam- Barbara Boxer (D-CA). ral first step. "We had nothing specific pus:A Frustrating Search for Justice" In April 2014, the White House about MIT," Rankin adds."Commu- by investigative reporters at the Cen- Task Force to Protect Students from nities respond better to specifics about ter for Public Integrity and National Sexual Assault released "Not Alone," their own community" Public Radio, both based in Washing- a report and website (wwwnotalone. Students replied vigorously-35 ton, D.C., probed slipshod handling of gov) calling on institutions of higher percent of the almost 11,000 students campus rapes. education to conduct sexual assault cli- completed a voluntary survey. One While sexual assault on a cam- mate surveys, provide better prevention question permitting open comments pus, as elsewhere, can be prosecuted and response programs, and improve had 1,200 responses."The climate as a crime by local law enforcement, a disciplinary mechanisms. At the same survey itself raised important conversa- university or college has an "indepen- time, OCR issued clarifying 53-page tions in the community," Rankin says. dent responsibility to investigate and guidance on student rights and school Survey results indicate that address sexual violence," according to obligations and released the names of unwanted sexual behavior was expe- the Office for Civil Rights (OCR) of campuses under investigation that were rienced by 24 percent of female the U.S. Department of Education. The previously kept under wraps. students and 7 percent of male stu- matters are handled through school By fall 2014, the White House dents. Less than 5 percent of those disciplinary proceedings—adminis- launched another website, It's on Us affected reported the incidents. Gradu- trative hearings in which student or (itsonus.org), urging bystander inter- ate students and undergraduates alike faculty adjudicators review complaints vention."Understand that if someone expressed difficulties with unwanted and apply institutional sanctions up to does not or cannot consent to sex, it's sexual behavior and confusion about and including expulsion. rape," it states. how.to access campus resources. Three federal laws apply to issues "The last five years there has MIT held town hall meetings, related to sexual assault on campus:Title been change that feels like a genera- revamped reporting processes, and added IX, the Clery Act, and the Family Edu- tional shift," says Colby Bruno, senior staff to its sexual violence prevention cational Rights and Privacy Act (see legal counsel of the Victim Rights program.The university posted tools on sidebar on page 7). Colleges and univer- Law Center in Boston, who has been a dedicated section of its website, shar- sities are expected to report on crime working on the issue for more than a ing its climate survey planning design, statistics and take action on sexual assault decade. "I never thought in my time focus group testing, implementation,

Commission on Women in the Profession Summer 2015 5 post-survey review, evaluation, commu- require federally funded colleges and committees with power to override nications, and tips.These tools can be universities to conduct annual sexual victim anonymity; require college and used on other campuses, too. assault climate surveys, give victims a university employees to report sexual In January 2015, the Association of private right of action, establish a fed- assaults; create agreements for services American Universities in Washington, eral interagency task force, and provide with a local rape crisis center; and place D.C., announced that it intended to fines for Title IX violations rather than a notation on transcripts of accused stu- conduct a comprehensive sexual assault the sole (and improbable) sanction of dents who are suspended, expelled, or climate survey on 28 campuses. the school's losing all federal funds. withdraw The state leapt into the spot- Advocates report that quiet changes The Campus Accountability light because of a later-retracted story are helping on the ground. Bruno and Safety Act (CASA), introduced in Rolling Stone magazine in late 2014 highlights the OCR 2014 guidance by Sen McCaskill with leadership about a rape at the University ofVir- affirming the confidentiality of vic- support from Sen. ginia, but the campus was already tim conversations with campus rape (D-NY), collected over 30 bipartisan facing one of the longest standing Title counselors, which some colleges and signers. This bill would require confi- IX investigations. Five otherVirginia universities had attempted to override. dential advisors for victims of sexual campuses were also under Title IX "Counselors who refused were losing assault, specialized training for cam- investigations by OCR as of April 2015. their jobs left, right, and center," Bruno pus personnel, annual sexual violence NewYork State: On July 7, Gov. reports. OCR made it clear that this surveys, uniform disciplinary hearings Andrew Cuomo signed "Enough Is is not acceptable. "[Having counselors without special procedures for athletes, Enough," legislation he proposed in available] benefits victims in a really information-sharing with local law January. Fourteen campuses in New important way," Bruno says. enforcement, and Title IX penalties York State were under Title IX inves- Brodsky hailed the release of the based on a percentage of the institu- tigations as of April, including Sarah names of colleges that are under Tide tion's operating budget. Lawrence College, IX investigation by OCR. "It made (highlighted by a female complainant's a huge difference for advocates," she States Take Legislative Action mattress-carrying project), and four col- explains. "Before, you had no idea who Many states' laws are also addressing leges in the state university system. "We was under investigation.You couldn't sexual assault on college campuses. have to have legislation as well as culture effectively communicate; you couldn't California: In September 2014, change. This is a national epidemic— hold the Department of Education Gov. Jerry Brown signed two laws no state, no school is immune," Cuomo accountable." regarding campus rape. As ofApril 2015, said at a Manhattan event promoting 11 California institutions were facing the bill.The Cuomo legislation requires New Laws Proposed Title IX investigations, including Stan- all colleges and universities to apply a Even before colleges and univer- ford University, , standard of affirmative consent in dis- sities could fully absorb the changes and four campuses in the University of ciplinary cases; have a Students' Bill of from the Campus SaVE Act,Vio- California system. SB 967, known as Rights that describes reporting options, lence Against Women Act amendments the "yes means yes" law, applies an affir- including to outside law enforcement; (see sidebar, opposite), new OCR mative consent standard in disciplinary and offer inununity from other campus guidance,White House Task Force hearings on sexual assault (see sidebar). violations (alcohol, for example) for stu- recommendations, and vigorous Title Less publicized, the law establishes a dents reporting sexual assault. The law, IX investigations, new proposals were preponderance of the evidence standard already in effect in state-operated insti- swirling, including three federal bills. in evaluating a complaint and requires tutions, requires compliance by all of the The Survivor Outreach and institutions to adopt "victim-centered" colleges and universities in the state by Support Campus Act (SOS Cam- policies and protect victim privacy AB July 2016. pus Act), introduced by Sen. Boxer 1433 requires campus officials to notify and Rep. Susan Davis (D-CA), would local police authorities about violent Other State Initiatives require colleges and universities that sexual assaults. The state university sys- Connecticut passed a law allow- receive federal assistance to have an tems in California separately established ing the University of Connecticut in independent advocate to help sexual independent advocates for sexual assault Storrs to hire nurses to work with sex- assault survivors. victims. A pending bill would impose ual assault victims. A lawsuit, by five The Hold Accountable and minimum punishments for perpetrators. UConn students for mishandling their Lend Transparency on Campus Virginia: Gov.Terry McAuliffe sexual assault complaints was settled Sexual Assault Act (HALT Cam- signed bills in May that require col- for $1.28 million in July 2014. pus Sexual Assault Act), introduced lege and university campuses to notify Maryland adopted a law requir- by Rep. Jackie Speier (D-CA) and local prosecutors of felony sexual ing campuses to have agreements with Rep. Patrick Meehan (R-PA), would assaults; establish sexual violence review rape crisis centers; inform students of

6 Perspectives American Bar Association Affirmative Consent Standard "Yes means yes" is an "affirmative consent" standard used in adjudicating student disciplinary matters on sexual assault in California, New York, and some campus policies. "Affirmative consent" is defined in the California law as: "affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person their right to go to local police; permit involved in the sexual activity to ensure that he or she has the affirmative consent of the victims to come forward without fear- other or others to engage in the sexual activity, Lack of protest or resistance does not mean ing alcohol violations; and undertake consent, nor does silence mean consent. Affirmative consent must be ongoing throughout climate surveys. a sexual activity and can be revoked at any time." Oregon enacted legislation to The law further states that a lack of affirmative consent cannot be excused because protect the confidentiality of conversa- of intoxication of the accused or because the complainant was asleep, unconscious, or tions between sexual assault survivors incapacitated. and counselors in the wake of an Colby Bruno, senior legal counsel of the Victim Rights Law Center in Boston, says that incident in which the University of "yes means yes" offers a distinction without a difference. "Either you have consent, or Oregon in Eugene accessed a survi- you don't," she points out. "It's implemented in the exact same way. It doesn't shift the vor's therapy records. burden."

An Evolutionary Phase Changes also come with detrac- tors.When new procedures were announced at Harvard University, 28 financial aid recipients who could lose a about CASA on a blog post. The way professors from the Boston-based law scholarship if they need time to recover. that the bill would amend and open up school objected to what they said was Katie Rose Guest Pryal, a lawyer Title IX is "risky," she says. a lack of fairness and due process for who is a volunteer consultant for End "Everyone wants tangible change the accused. Sixteen law professors at Rape on Campus, is developing a tool- because they know that this is such a the University of Pennsylvania in Phil- kit to engage pro bono or "low-bono" problem," Bruno says. "And it is. But adelphia denounced the new campus lawyers for survivors and their parents. I would much rather see meaning- procedures because they limited cross "Parents feel scared and hurt because ful change. I would much rather see examination and used the "preponder- their child has been scared and hurt," schools get on board. We have a lot of ance of evidence" standard. Pryal says. She is researching how dis- rules—let's see how they play out." This standard also bothers Patri- ability laws might aid traumatized cia Hamill, a commercial litigator at survivors. Conrad O'Brien P.C. in Philadelphia, Laura Dunn, a rape survivor and Cynthia L. Cooper is an independent journalist who has filed two lawsuits against col- lawyer who in 2014 founded SurvJus- in New York City with a background as a leges on behalf of accused males, and ticeNow, raised a series of questions practicing lawyer. who, with 19 other lawyers, wrote Sen. McCaskill to express concerns about the direction of federal bills. Disciplinary proceedings can have "life-changing and dramatic repercus- Federal Laws Address Sexual Assault on Campus sions for those accused," Hamill says. Three federal laws guide matters related to sexual assault on campus: Among other things, Hamill believes Title IX of the Education Amendments Act of 1972 (20 U.S.C. § 1681 et that accused students should be able seq.) prohibits sex discrimination in federally supported educational institutions and to put forward evidence and hear the requires colleges to take immediate steps in response to complaints of sexual violence. evidence against them. "It's a very Enforcement by the Office for Civil Rights (OCR) of the U.S. Department of Education imperfect system," she says. "We're in involves the investigations of specific and university-wide practices. Institutions found an evolutionary phase.The pendulum in violation can lose federal funds. Expectations of campuses were updated by a "Dear has swung to the other side. What we're Colleague Letter" in 2011, the Campus Sexual Violence Elimination Act (Campus SaVE) in looking for is fairness for all concerned." the Violence Against Women Reauthorization Act of 2013 (VAWA), and an OCR guidance, Advocates for victims, focused on "Questions and Answers on Title IX and Sexual Violence," released in April 2014. the day-to-day life on campus, are also The Jeanne Clery Disclosure of Campus Security and Campus Crime searching for answers. Statistics Act (20 U.S.C. § 1092(f)), known as the Clery Act, was passed in 1990. It "I'm not sure if more legislation requires colleges and universities to track and disclose crime statistics. The Federal Student is needed right now," says Kiss of the Aid office of the U.S. Department of Education monitors the law through a special Clery Center. unit organized in 2010, and it may issue fines of $35,000 per violation to colleges and Brodsky is concerned about the universities that fail to comply. VAWA added dating violence, domestic violence, and aftereffects of rape and trauma on par- stalking to sexual assault reporting; regulations took effect July 1, 2015. ticular survivors—undocumented The Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) (FERPA) students, international students who protects the privacy of student educational records at all colleges and universities that must carry a minimum course load, and receive federal funding and is enforced by the Family Policy Compliance Office of the U.S. Department of Education.