By Wendy Murphy
WeNews contributing editor
Monday, August 8, 2011
Schools have new federal rules about investigating campus sexual assault. A possible gray area in the wording could give some schools wiggle room not to investigate. Wendy Murphy says that would be a huge step back.
(WOMENSENEWS)--Federal investigations were launched last year against Harvard Law School and Princeton University for their inadequate handling of sexual assault reports.
Afterwards, Vice President Joe Biden visited the University of New Hampshire to announce new standards in a "Dear Colleague" letter from the Department of Education's Office for Civil Rights.
Declaring that "rape is rape" whether it occurs on campus or in the real world, and whether the victim is sober or intoxicated, Biden left little doubt that his announcement was intended to inspire schools to do more, not less, to redress sexual assault reports on campus.
But certain language in the "Dear Colleague" letter has given rise to a hairsplitting debate about whether investigations are mandatory or whether officials can do "nothing" if the victim doesn't want an investigation.
Brett Sokolow heads the National Center for Higher Education Risk Management, a Malvern, Pa.-based legal and consulting firm that provides training and educational programs to enhance campus safety. He says school officials around the country are arguing about this bit of language in the letter: "If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation."
The phrase "consistent with the request . . . not to pursue an investigation" is being read as giving officials the option to do nothing.
Some advocates for victims are pushing this interpretation, arguing that it more respectful to the victim to let her decide whether any action is taken, says Sokolow. The gist of their argument is that a victim of sexual assault has lost control over her body, so school officials should give her back some of that control by letting her choose whether an investigation takes place.
But such arguments, if taken seriously, will do serious disservice to the intention of this ruling, which is to do something about shocking data that finds 1-in-6 women will be victimized during their college years, and only 5 percent will report the crime to school officials.
Schools know that mandatory investigations increase their liability and potential for negative press. They clearly benefit from any policy that gives them discretion to do what they want in response to a sexual assault report, including nothing at all.
Mandatory investigations of violence against women on campus is always the responsibility of school officials because they are obligated by federal law to protect students from targeted violence and to preserve the integrity of the learning process by ensuring all students have an "equal" educational opportunity.
This duty is no more paternalistic when sexual assault is being redressed than when the harm reported is plagiarism or harassment of Muslim students. An official act is not inherently gendered simply because the people most likely harmed by a prohibited act are female.
This misunderstanding of the nature of school-based responsibilities has fueled an even stranger misuse of the concept of choice.
The policy of mandatory investigation is often framed as taking away choice from the victim, as if the issue has something to do with abortion and women's fundamental human rights over their bodies.
This argument starts to look truly twisted when you hold it up to the light of data showing that giving women the "choice" to allow foot-dragging by responsible officials directly contributes to violence against women's bodies.
This contrived "choice" debate is not imposed on any other type of crime victim or witness to violence on campus or in the real world. School officials don't ask permission of the campus community to investigate a student accused of plagiarism or racist harassment. In the real world, victims of gang violence and eyewitnesses to drunk driving are not asked whether they want law enforcement to do its job.
Proponents who support the idea that schools need discretion to do nothing argue that mandatory investigations will reduce reporting rates, currently a mere 5 percent.
In fact, data from the real-world criminal justice system show the opposite. A leading study from California found that when an official response was mandatory--and the decision whether to proceed with prosecution was not imposed on the victim--recidivism rates were dramatically reduced.
Justice is the business of official action, not private decision-making. All individuals are duty-bound to provide official investigators with relevant information and participate in the process of ensuring that serious harm is redressed fairly, whether on campus or in the real world.
Advocates for the fair treatment of women when they are victims of targeted violence should be asking why this debate about "choice" occurs only in the context of rape and domestic abuse.
And they should be wondering why a victim only has the "choice" to allow officials to take no action. True choice would also allow victims to compel officials to take action, as well as to take no action. But schools don't defer to the wishes of victims who demand justice; they indulge only the ones willing to give them a pass for doing nothing.
The threatened effect of this policy is doubly harmful to the victim who "chooses" to do nothing, because if an offender commits additional sexual assaults thereafter, the first victim, rather than any responsible official, will be blamed.
Proponents of the "choice" model say schools can make up for the lack of redress opportunities by developing central repositories of accused offenders so that no matter what happens in a given case, repeat offenders are easily identified.
I proposed this offender repository many years ago in the university and military contexts, irrespective of mandatory investigation policies, but the resistance was near universal and opposition voices pointed to privacy concerns to justify avoiding such repositories.
Those concerns were misplaced, but that's another story.
Centralized offender files should not be propped up now to justify policies that allow schools to do nothing in response to sexual assault reports.
Making a choice between mandatory investigations and central repositories for offenders is like asking people with cancer to choose between radiation and chemotherapy. Effective treatment usually requires both.
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Wendy J. Murphy, a contributing editor to Women's eNews, is a law professor at New England Law/Boston and an expert in Title IX.
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