Colleges as Our Courts: The Precarious New Normal in Campus Sexual Assaults

| July 15, 2014

Colleges need not serve to adjudicate vicious felonies—leave it to our courts of law.

EDITORIAL – Conservative op-ed columnist George Will found himself embattled in a firestorm of controversy due to controversial remarks penned in his June 6 column in the Washington Post.  The widely syndicated opinion columnist was condemned from politicos and journalists on varying ends of the political spectrum for his contentious take on campus sexual assaults.  Will took on the Obama administration’s claim that one in five women are victims of sexual assaults while in college and, claimed, “That when they [the Obama administration] make victimhood [of sexual assaults] a coveted status that confers privileges, victims proliferate.”

Will’s ‘coveted status’ remark took many policymakers aback and charged that Will was playing into the age old game of ‘blaming the victim’ of violent sexual assaults.  Sure, Will’s language was strong and inflexible—and likely, out of touch.  But while the premise of his argument: that women are often to blame for their own sexual assaults was, unequivocally, out of line; his point was nevertheless poignant—government ought to adjudicate sexual assaults on our college campuses, not university disciplinary committees.

First, Will was right to note that the statistics the Obama administration frequently employs on the stump, regarding campus sexual assaults, are specious at best.  Both President Obama and Vice President Biden frequently posit the factoid that “one in five women are sexually assaulted on college campuses.”  To say that the Obama administration was not grasping at straws with this shaky figure would be disingenuous.  The 2006 report frequently cited by the administration was a web-based survey sent to the e-mail accounts of students at two college campuses, an institution in the south and another in the Midwest.  In quantitative data analysis, your sample (e.g., those who are surveyed) matters; further, as does the medium employed to survey respondents, and any material incentives given to respondents to complete the questionnaire (in the case of this survey, respondents were given a $10 gift card.)

Web-based surveys are notorious for issues relating to self-selection sample bias—a methodological condition where survey takers can choose for themselves whether or not they want to participate in a questionnaire.  Another issue with web surveys is the low response rates you receive from the prospective sample.  Moreover, giving respondents an incentive to participate undermines the rudimentary stochastic (non-deterministic) nature inherent to random sampling.  Taken together, a survey where only two large institutions are surveyed by e-mail regarding sexual assaults, where respondents are rewarded for their responses, must be taken with a grain of salt.  When a social scientist seeks to properly conduct survey research, their aim is to exact a truly random and representative sample of a larger population in order to posit generalizable assumptions regarding an attitudinal manifestation believed to occur, or not occur, in human social interaction.  Bluntly, this data and its constituent methodology are insufficient to be taken as a serious study discerning the aggregate number of sexual assaults on college campuses, nationwide.

Nevertheless, rape is a heinous and serious felony.  Even if the data employed to support the claims for increased oversight on our nation’s college campuses is not worth the paper it’s printed on, we must take each and every sexual assault very seriously.  One sexual assault unpunished is still too many.  To reiterate, Will was out of line to claim that sexual assault victims enjoy a ‘coveted status’ when reporting their assaults, but I steadfastly agree with his notion that sexual assaults should not be handled in-house by university functionaries.

The U.S. Department of Education, Office for Civil Rights has promulgated a series of revised sexual assault guidelines to U.S. postsecondary institutions on how colleges and universities should respond to sexual assault allegations.  The Dept. of Ed asserts that universities should employ “grievance procedures [which are] consistent with Title IX standards, the institution “must use a preponderance-of-the-evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).”  That is the standard of proof established for violations of civil-rights laws, the [Dept. of Ed guidelines] note, and therefore is “the appropriate standard for investigating allegations of sexual harassment or violence.””  The Department of Education’s equivocation is that they conflate civil rights violations to the stature of violent sexual assault.  Rape is a violent and heinous felony—not a violation of civil rights.

It is the opinion of this author that when a rape has been committed on our nation’s college campuses, the university should have no role in the adjudication of the offense.  If a sexual assault is reported to a university staff member, the functionary should contact the appropriate legal constabulary (in the case of Valdosta State University, VSU Police) and the proper legal procedures should be taken.  Rape is too serious a crime to be handled by a university disciplinary panel, employing an arbitrary preponderance-of-the-evidence standard.

If an individual is punished by a university committee under the preponderance-of-the-evidence standard, and the accuser later recants, the legal ramifications to the university could be replete.  When a matter such as rape, with all of the legal and social consequences attached, is handled by a disciplinary committee, not employing the penal standard of conviction beyond a reasonable doubt, they are denying the accused adequate due process.  Our very system of justice is founded upon the notion of due process for every defendant, when universities prosecute sexual assault, that standard, per Dept. of Ed guidelines, is rendered ineffectual.

Sen. Claire McCaskill (D-MO) has recently laid claim to the notion that America’s colleges and universities are not taking the issue of campus sexual assaults seriously, citing a statistic that 73 percent of institutions have failed to adopt protocols to work with local law enforcement to prosecute sexual assaults.  No, it is Sen. McCaskill who fails to understand the very grievous nature of rape.  I agree with Sen. McCaskill that each university should have a designated coordinator to aid in the prosecution of campus sexual assaults.  But this coordinator should work with university or local law enforcement to ensure that violators are brought to justice—before institutions of government.  The real potential for due process violations in the adjudication of these violent crimes should give pause to advocates of universities taking a more active role in campus sex crimes.  In a few words, we should not apply a civil legal standard (e.g., preponderance-of-the-evidence) to a heinous felony: rape.

The most effective manner to handle these vicious and unspeakable crimes is to report them to law enforcement and let our nation’s judicial system take its course.  Universities should have the right to suspend those who have been formally charged with a sex crime; though, in the event of vacated or dropped charges, fully readmit the student.

It is often said that rape is only second to murder in the pantheon of penal offenses, if that’s so, let’s treat it as such.  Let’s not allow the unwieldy nature of the academe get in the way of prosecuting violent crimes.  If policymakers are to be serious in preventing sexual assaults on the campuses of our nation’s austere institutions of learning, they should treat rape as if it happened anywhere else—a crime to be prosecuted to the fullest extent of the law.  In the landmark first amendment Supreme Court case, Tinker v. Des Moines (1969), Justice Abe Fortas, writing for the majority of the court, famously declared that “students don’t shed their constitutional rights at the school house gates.”  Congruently, and applying charity to Justice Fortas’s opinion, the right to due process and the right to a fair trial before institutions of government, prior to being deprived of life, liberty, or property, should not be arbitrarily infringed by Department of Education guidelines when one crosses the threshold of the school house gate.  Our systems of justice must be more tenacious in prosecuting sex crimes on college campuses, but we must also remember that justice devoid of due process is no justice at all.

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3 Comments on "Colleges as Our Courts: The Precarious New Normal in Campus Sexual Assaults"

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  1. Anne Elizabeth says:

    Great article. Thank you.

  2. Anne Elizabeth says:

    Great editorial. Thank you.