In 2014, the United States Department of Education's Office for Civil Rights released a list of 55 colleges for possibly mishandling cases of sexual assault. Two years later, that list has grown to 200. The problem of sexual assault on college campuses is endemic, but sorting out how to fix it has proven even more frustrating for survivors, advocates and their supporters.
But who should students expect to hold accountable? The perpetrators? Their schools? Or the criminal justice system? We spoke with Michele Landis Dauber, a Stanford Law professor who is a leading expert on campus sexual assault and co-chaired her school's Board on Judicial Affairs, about what student should expect from their colleges, and why those expectations aren't enough.
Mic: Talk a little bit about who's most at risk for sexual assault on college campuses and why.
Michele Landis Dauber: We all know the statistic — 1 in 5 undergraduate women — are sexually assaulted while in college. I think that statistic is really familiar. Many surveys show that some groups even have higher rates within that demographic, such as African-American women and LGBTQ women. Transgender students seem to have a rate that's similar to or slightly higher than cisgender women in college, although there isn't enough research there and we absolutely need to know more about the experience of transgender students. Disabled women and disabled students generally also have very high rates.
You've served as co-chair of the Board on Judicial Affairs at Stanford and suggested broadening the definition of sexual assault, which is defined differently on college campuses across the country. Why isn't there a standard definition of campus sexual assault from which these schools operate?
MLD: In fact, there is a more or less standard definition that is in use by the majority of schools which defines sexual assault as any sexual contact without consent. Most schools use that definition and actually the regulations that were issued in 2014 under the Violence Against Women Act and the Clery Act actually use that definition as well.
However, a few schools, including Stanford, have persisted in using narrower definitions that include, for example, a requirement of violence in order to establish sexual assault. Stanford is actually virtually alone among its peer schools in using an extremely narrow definition of sexual assault and I think that people would be shocked if they knew the things that are not included within the definition of assault at Stanford, which excludes many felony sex crimes like sexual battery and sexual penetration of a person who is too intoxicated to consent. Our definition at Stanford leaves a lot out and it makes Stanford an extreme outlier among our peer schools.
There are a few other schools — University of Chicago being one — that also have a somewhat narrower definition than, in my opinion, they should.
I think these narrow definitions are really dangerous because I think they send a dangerous message about what conduct is really seen as off limits and what is merely "misconduct." At Stanford, sexual battery is only misconduct, it's not assault. I think that message that we're sending to students is clearly at cross-purposes with our education and prevention efforts in which we're trying to tell them if there's not consent, then don't do it. But then we say it's really only misconduct. It's something of a mixed message and it's a very unfortunate message.
Most students aren't familiar with how their campus judicial processes work until they're forced to confront them. What's one important takeaway they should know about how those systems work?
MLD: I think one important takeaway is that survivors need an attorney or a trained legal advocate who understands the process at each school. Ideally, they would speak to an attorney or a trained legal advocate before they report, but that's not always possible.
I think that they shouldn't need an attorney and it's horrible that they need an attorney, but it's rapidly becoming a fact that they do because these process have become some legalized. And in my opinion, that has happened in response to what schools see as a threat of litigation coming from accused students. They've really built up these processes into almost quasi-legalistic or quasi-court-like processes that are intended to fend off liability for the university from alleged perpetrators but have the effect of really ensnaring the reporting survivor in a whole quite complicated legal process that she is not equipped to manage alone.
"Survivors need an attorney or a trained legal advocate who understands the process at each school."
What prohibits university administrators from going to the police in most instances of alleged sexual assaults?
MLD: It's really up to the victim whether she choose to pursue criminal charges. But I want to make something really clear because I think there is an absolutely misunderstanding going on in the world here. In the vast majority of cases, it is the prosecutors and the police who will not pursue these cases. The victim in many cases is reporting, but the police won't arrest and the prosecutors won't charge. And it is her word against his and that is a case in which prosecutors believe will not win in front of a jury.
You can blame prosecutors for that, or you can see them as they would say, as trying to protect victims from having to go through the horrible situation of a trial only to lose. That is a very grueling situation which victims often report is almost worse than the assault itself.
In 2014, the Office on Civil Rights released a list of 55 schools under investigation for their handling of sexual assault cases. What added pressure did that put on schools to act?
MLD: There are now more than 200 schools on that list. I think that list by the federal government to have some transparency pushed communities and schools themselves to hold themselves to federal law. That list should pressure schools to create transparent processes. I personally believe transparency is the key to solving this thing. The public needs and deserves information about what's happening at these schools and it really shouldn't be any secrecy.
There should be confidentiality for survivors to the extent that they want, and there should be protection of student records as provided by law, but schools have always extended that claim of confidentiality and stretched it way beyond the breaking point. They're doing that to protect themselves, not survivors, not students. That has to stop. The public needs and deserves transparency around how these complaints are handled so that it can provide feedback through the democratic process.
What institutional responses to sexual assault we look at for models on how to address it on all college campuses?
MLD: I think that Yale is a model of transparency in many ways. I think that Dartmouth has done some very good things in terms of discipline. For example, making expulsion mandatory for certain classes of sexual assault.
The main thing to know is that in both of these cases, there were very serious previous federal investigations and lawsuits. These changes were very hard-fought. They didn't come easily, they came through struggle with these institutions. No [institution] is doing it right voluntarily. This is struggle, and like all the other great civil rights struggles, they involved making what Rep. John Lewis calls "good trouble."
I don't think the situation in colleges with sexual violence is different than other kinds of civil rights struggles, except that the issue involves women asserting their own right to control their own bodies. That has caused it to be perceived as different.
Our schools have responded by saying this is about sex and teaching drunk teenagers how to have good sex or maybe it's about alcohol. This is about rape. It's also about women's right to chose what happens to their own bodies and control their sexuality.