Specializing in the representation of crime victims, women and children.

THE HARSH TRUTH ABOUT CAMPUS SEXUAL ASSAULT

By Wendy Murphy    May. 01, 2013

 

Campus-Sexual-AssaultApril was “Sexual Assault Awareness Month” but there’s a striking lack of awareness of the REAL problem on certain college campuses.

The New York Times recently showcased problems and federal investigations of the University of North Carolina.  Other sources of mainstream media have covered stories about investigations at the University of Montana, Occidental and Notre Dame, but just try to find a story about federal investigations now underway at the University of Virginia, Harvard Law School and Princeton University.  They are all not only on the hot seat with the Office for Civil Rights at the Department of Education for allegations of serious noncompliance with Title IX in their handling of sexual violence on campus, it was investigations against THEM in 2010 (actually the first case that REALLY spawned this movement was filed against Harvard College more than ten years ago) that spawned ALL the recent complaints.

These top-tiered schools were in trouble even before Yale, (indeed, the Yale investigation was caused BY Harvard Law School employees who encouraged students there to file THEIR complaint in early 2011, long AFTER Harvard Law was already under investigation.  The people from Harvard Law who contacted the Yale students and offered to “help” them with their sexual harassment problem never revealed to the Yale students that Harvard Law was already under investigation for serious violations of Title IX.  The Yale students had no idea they were being used to DISTRACT public attention away from Harvard Law and that Yale would soon be the whipping boy/news event that would explain Joe Biden’s visit to UNH in April 2011 to announce new Title IX guidance. – (a visit that was planned long before Yale was in trouble).

The new guidance announced in April, 2011 was crafted in response to MAJOR problems at Harvard, Princeton and U.Va., whose complaints were sent to OCR headquarters in DC months before there was ANY talk of filing complaints against Yale (or ANY other school in the country for that matter). Yet all the news stories about Title IX make no mention of these three schools being investigated – or the fact that their problems spawned ALL the recent student-based activism.

People who knew about the complaints against Harvard and Princeton (including me) also knew, in 2010, that new guidelines were being prepared in response to those complaints, and that they would likely be announced in April, 2011.

Harvard and Princeton had adopted particularly offensive policies in sexual assault matters – and they remain among the worst schools in the nation.  In fact, they are STILL under investigation today – after more than 2 1/2 years – which generally happens when schools REFUSE to comply with OCR demands that they fix their broken policies.   No surprise it was recently revealed that they are the ONLY two schools in the nation that refuse to apply the “preponderance of evidence” standard during sexual assault hearings on campus and insist on applying stricter standards that amount to a declaration that the word of a woman isn’t good enough.

Harvard Law School, Princeton and the University of Virginia have largely escaped public scorn even though upper-tiered schools are among the worst offenders, probably because they have the largest concentrations of the most entitled males and have the most to lose in terms of money and reputation when rape happens.

But they are duty bound to comply with Title IX because they accept federal funds.  All public schools and schools that accept federal funds are mandated by Civil Rights laws to take “prompt and equitable” steps to redress sexual and dating violence on campus, just as they are mandated by Civil Rights laws to take the same steps against perpetrators of racist, religious and ethnic harassment and violence.

That Title IX was subjugated among campus-based civil rights laws for almost forty years, and was misframed as a sports equity rule for decades, partly explains why women are much more vulnerable to sexual assault than are other students vulnerable to any other form of targeted harassment or violence.  Studies also show that women are more likely to be raped while in college than in the real world.  This profoundly disturbing is cruelly ironic given that Title IX is a “special” law that offers EXTRA protection against harassment and violence in the “special” community of higher education, yet the data tells us that girls are more safe NOT going to college.

As one of the lead attorneys and activists who has been fighting for twenty years to force schools to comply with federal civil rights laws on behalf of women, I’ve written extensively on the topic in law review and pop culture articles, and I’ve lectured all over the country on this issue. It is increasingly clear to me that higher-tiered tiered schools may well be intentionally trying to discourage women from achieving equality in society.  Why else would they openly indulge policies that treat violence against women as a less serious harm than violence against other “types” of students based on women’s status in society?

Elite schools are often too eager to indulge entitled male athletes, legacy students and other money-based concerns that benefit offenders and incentivize schools to side with perpetrators when rape happens.  Schools also discourage reporting by dismissing or devaluing victims’ reports as a way of artificially keeping incidence rates low.  (If they don’t fully believe her – then it didn’t happen.)

Women students at elite schools are understandably reluctant to take on legal battles against schools that have the power to affect their graduate school plans and future careers, so they accept the maltreatment rather than serve as the sacrificial lamb whose case might provoke meaningful change.

Because of this pervasive unwillingness of most victims at elite schools to file complaints with OCR or lawsuits in the real world, I set out more than ten years ago to file a complaint with OCR without having an actual client who suffered a personal violation of her rights.

I took a chance and filed a complaint on behalf of women as a class against Harvard College when that school amended its sexual assault policy to require victims to produce “independent corroboration” (proof of the offense) before school officials would afford victims fair redress for their sexual assault complaints.

My complaint to OCR on behalf of all women at Harvard was groundbreaking in that it was filed as a challenge to the legitimacy of the policy itself under Title IX on the grounds that the policy was “inequitable” and would lead to “non-prompt” redress; two of the most serious violations of Title IX’s overarching mandate that complaints be resolved with “promptness” and “equity”.

The case was groundbreaking because OCR complaints had historically been accepted only if there was a “live controversy” involving the violation of Title IX rights against an actual student affected by an unlawful policy. I argued in the complaint that requiring corroboration was patently unlawful and so profoundly sexist and offensive, OCR should investigate Harvard and force officials there to repeal the policy before it had a chance to cause harm to an actual student.

The case led to a landmark decision from OCR not only because they accepted the case without an actual victim filing the complaint, but also because they forbade in no uncertain terms the adoption of a rule that required victims to provide “corroboration” as a pre-condition to fair treatment and equal justice.

Word quickly spread that it was now possible to file complaints without requiring a student to stand up personally against her school (and suffer the risk of retaliation, etc.), which led to lots of students closely examining their schools’ policies and procedures and taking action to hold schools accountable for violations by filing “policy-based” Title IX complaints.

Much of what remains problematic is that elite schools continue to resist full compliance even in the face of growing student outrage.  Some of the most dangerous strategies that enable noncompliance are now codified in the Campus SaVE Act, a new federal law recently enacted as part of the VAWA that effectively trumps the April 2011 “Dear Colleague Letter” (new global guidance offered to all schools nationwide by the Department of Education in response to OCR complaints against Harvard Law School and Princeton University) and allows schools to run out the clock on student complaints so that complaints are not “finally determined” until the eve of graduation. This means a school can rule in favor of a victim “promptly” (federal law requires no more than 60 days), but a “final determination” is not subjected to the requirement of “promptness under The Campus SaVE Act, which means the school can subsequently overturn its initial decision and rule in favor of the perpetrators months, if not years, later.  In fact, a final determination in favor of the perpetrator can occur right before the victim leaves campus, thus greatly reducing the chance that she can or will seek redress at OCR or in state or federal court, and ensuring that a school will not sacrifice a single tuition dollar by imposing a “prompt” final dispositions and effective sanction against the perpetrator.

Campus SaVE also allows schools to apply the sexist and offensive “clear and convincing evidence” standard (about 75% proof), or something similar such as Harvard’s “sufficiently persuaded” rule, (unclear percentage value but allows decision-makers fudge room to claim they believe a victim – but not “sufficiently” enough to do anything about it), thus enabling school officials to tell victims that they believe them and care about them, and will send them to counseling (where victims are often discouraged from filing complaints and are encouraged to ‘move on’), but they don’t believe them ENOUGH to punish the perpetrators.   Campus SaVE allows schools to apply the offensive standard because the original iteration of the law had the preponderance standard explicitly listed as mandatory, but then that provision was removed, thus enabling schools like Harvard to argue that the act of removing that language demonstrates congressional intent NOT to require the standard as a mandate.

Schools that want to protect offenders don’t like the preponderance rule because in practice it would mean that if officials believe the victim a little bit more than they disbelieve the offender’s denial, they must take action. (“action” does not mean expulsion in every case, but it does mean that something “effective” must be done to redress the harm to the individual victim and to the campus community because civil rights harms affect everyone).

In my first case against Harvard more than ten years ago, OCR eventually forced school officials to withdraw the offensive “corroboration” policy, but Harvard continues today to balk at demands that they come into full compliance, which is why their Law School remains under federal investigation today, 2 ½ years since the investigation that led to the issuance of the April 2011 Dear Colleague Letter began.

As a coercive oversight agency, OCR usually wraps up its investigations in 180 days by using that time to persuade schools to come into compliance under threat of losing federal funding or having the matter referred to DOJ.  Investigations languish when stubborn schools refuse to accept OCR’s demands that they change their policies to comport with federal law.

Among other problems, Harvard Law School, like Princeton, refuses to adopt the “preponderance of evidence rule” even though every other school in the nation complies with federal law.  In short, this means at both schools, the word of a woman just isn’t good enough – or worthy of equal respect – which is not only offensive but also inconsistent with principles of true equality and all federal regulatory and case law on the topic.

Among elite schools, the University of Virginia may well be the worst of the worst.  In a case I filed on behalf of a sexual assault victim with OCR/DOE and the DOJ about a year ago, we proved that the school’s forensic nurse not only changed a medical report to state falsely that there were no vaginal injuries (there were many), she also destroyed or suppressed from evidence at the hearing photographs she took of the vaginal injuries using dye and catheterization.  This nurse forbade the victim’s mother to be in the room at the time of the examination, but noted in her initial report that she had, in fact, applied dye and inserted a catheter to enable her to take photographs of the victim’s internal injuries.  The victim, of course, recalled the dye and catheter, and that dozens of photographs were taken.  The entire family was shocked when none of those photos were presented at the school’s disciplinary hearing on the matter.

When asked what happened to the photos, a university dean responded to the victim’s father in a terse email “there are no such photographs.”  Complaints were subsequently filed with several oversight entities including the nursing licensing board, the forensic nurse’s association that certifies SANE nurses, and several federal agencies including OCR at DOE, HHS and DOJ.

One would expect that because the hearing board at U.Va. ruled in favor of the perpetrator on the grounds that, inter alia, there were “no vaginal injuries, “ the various entities that received complaints on behalf of the victim would eagerly take the opportunity to sanction U.Va. for outright lies about the existence of photographs showing vaginal injuries of a rape victim.  Yet in one recent response, the board of nursing told the victim’s father that the nurse who changed her medical record and apparently destroyed photographs did nothing wrong.

Hopefully the other oversight agencies, which have yet to rule on the matter, will appreciate the importance of stating in no uncertain terms that lies and destruction of evidence will not be tolerated.  With any luck, they might also note that U.Va.’s forensic nurse should never be involved in examining victims given that she is paid by the university and has an obvious and profound conflict of interest. That she was married at the time to a senior prosecutor in the County Attorney’s office that declined to file criminal charges is also worthy of comment by the DOJ; the agency vested with the responsibility of ensuring that civilian law enforcement officials not conspire with schools to discriminate against women in the discretionary decision-making process.

It’s time for officials at elite schools to show leadership by condemning the tendency of especially upper-tiered schools to engage in disdainful disrespect for women’s safety and equality.  After more than forty years, Title IX has finally won its rightful seat at the Civil Rights table and the public is beginning to understand that sexual assault causes harm not only to students but to the very nature of what it means to be educated amidst the highest values of a free democracy. Schools that educate our brightest young people should seize the moment and advance this idea with full force and pride.

Parents considering where to send their children to college are more aware today than ever before that sexual assault is a major problem and they are starting to ask questions about schools’ compliance with Title IX when deciding where to send their children, especially their daughters, to school.  An Ivy League degree is worth very little to a woman who spends decades recovering from rape. Moreover, parents who have watched their daughters be mistreated are fed up, and they are working together to form internet-based organizations where truth can be told and other parents can learn important information about the subversive ways schools respond to victims who report sexual assault.

The betrayal that students feel when their reports are disrespected is similar to the feeling experienced by parents who are shocked to learn that schools turned a blind eye to their daughters’ suffering and acted covertly to protect the harmdoer.  This form of betrayal has been recognized in new research as its own form of injury and will soon cost schools a lot of money in damages claims (I’m involved in just such a suit against Yale) when families start filing federal lawsuits and class actions to shine a light on unconscionable injustice.

Not long ago, parents thought only about Clery Act numbers when assessing whether a campus was “safe.”  Most assumed their daughters were safe at schools that reported low numbers in annual Clery Act “report cards.”  These days, parents know that low numbers may be an indication that a school is taking steps to deter reporting in order to keep the numbers artificially low.  Smart parents are asking more important questions about whether a school respects the purpose of Title IX and complies not just technically with the letter of the law, but FULLY with the best possible standards that afford maximum respect for women’s safety.

Schools that refuse, for example, to render “final determinations” within sixty days or apply the preponderance of evidence rule are more dangerous for women students because they expose women to a disproportionately high risk of violence by the enforcement of less than ideal Tile IX standards.

Lots of schools claim to have a sincere commitment to women’s safety and equality, but words are meaningless.  Those that embrace the “gold standard” for Title IX enforcement will no doubt enjoy the richness (literally and culturally) that comes from increased parental desire to send their children to a university where ALL students learn in an environment of true equality.

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