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New Campus Sexual Assault Legislation Is Not Enough to Prevent Another Florida State Scandal

Simone Becchetti

The front-page New York Times story was horrifyingly familiar. A college student allegedly raped by a sports star. A police department whose investigation was suspiciously perfunctory. A university that looked the other way, seemingly more interested in its multi-million-dollar football program than campus safety.

The Florida State scandal is just the latest in a series of dismaying cases that make it hard to deny that the mishandling of college sexual assault is a critical problem nationwide. Recently, numerous big name schools, including Yale, Swarthmore, Harvard, the University of North Carolina, and Amherst, have come under fire for their treatment of sexual assault cases. Victims were ignored or dismissed. Administrators were told to make sure charges never saw the light of day.

As the problem becomes more and more obvious, we’re beginning to see new policies. At the federal level there’s President Obama’s Campus Sexual Violence Elimination (SaVE) Act, which will take effect this year. The act requires any college or university participating in federal student aid programs (essentially, all U.S. schools) to meet new standards, including prompt investigation of alleged sexual assaults and anti-sexual assault educational programs. Schools that fail to meet these standards can lose their federal aid. This is on top of the Obama administration’s 2011 “Dear Colleague” letter, which also mandated a higher level of responsiveness to sexual assault charges, recommending that colleges use a "preponderance of the evidence” standard when it came to investigating sexual assault, a lower bar than the “beyond a reasonable doubt” standard used in criminal cases. This drew the ire of a number of individual liberties groups, which claimed it violated due process.

Legislation pending in California covers similar ground, and is drawing similar reactions, both positive and negative. Under a proposed new bill, SB 967, any college receiving public funding must adopt an “affirmative consent” standard for determining whether or not an assault took place—in other words, it’s not just “no means no,” it’s “only yes means yes.” The law would also bar certain excuses from being used as mitigating factors—that the accused was drunk, for example. Students would be responsible for securing consent from their partner “expressed either by words or clear, unambiguous actions” prior to each bout of sexual activity.

Does this make sense as a means to improve the obviously troubled way that colleges have addressed sexual assault? Some say that “only yes means yes” is the best way to avoid coercion and misunderstanding. Lying silently on the bed in terror is not consent, they say. Supporters include the California Coalition Against Sexual Assault and the California Partnership to End Domestic Violence. “The measure will change the equation so the system is not stacked against the survivors,” said state senator Kevin de León, one of the bill’s authors, quoted in The Sacramento Bee. “There’s nothing that’s vague, there’s nothing that’s ambiguous to this equation right here.”

Others say that legislating sexuality to such a degree is, in the words of the Foundation for Individual Rights in Education, a non-profit civil liberties group, “confusing and legally unworkable.” They point to the much-ridiculed “Antioch Rules” of the early 1990s, in which the ultra-liberal Ohio college passed a policy requiring students to explicitly ask before any sexual encounter (“may I kiss you? May I touch your left breast?”).

But the larger issue surrounding the prosecution of sexual assault on college campuses, as the Times story sadly showed, is the reluctance of universities and the police to pursue these crimes. While new legislation may make it easier to prosecute sexual assault, the fact is that neither universities nor the justice system are particularly interested in prosecuting sexual assault.

Rape is notoriously difficult to prosecute both on and off campuses. Only about 10 percent of all rapes in America are ever reported to the police in the first place. And of these, only 14 to 18 percent are ultimately prosecuted. As a report from the Center for Research on Violence Against Women bluntly states, “Prosecutors often only take cases they can win.”

When a rape is committed at a college, there are additional difficulties when it comes to investigation and prosecution. First, there’s the fact that it’s simply more common. Women between the ages of 16 and 24 experience rape at four times the average for all women. And women in college are raped in higher numbers than women of the same age who are not in school. The types of rape these women tend to experience—where alcohol is involved and the rapist is an acquaintance—are both less likely to be reported and less likely to be prosecuted than so-called “stranger rape.” These are the “he said, she said” cases that police are most likely to dismiss and prosecutors are loath to take on.

The universities themselves often stand in the way of justice. More and more reports are emerging about students discouraged by university administrators from reporting their assaults to the police. And internal disciplinary proceedings are often troublingly opaque and inadequate, both for accuser and accused. At the University of California at Berkeley, only 1 out of 32 cases of alleged sexual assault between 2011 and 2013 received a formal disciplinary hearing. At Harvard, an alleged victim was told by campus authorities to forgive her assailant and learn to live in the same dorm as him. At UNC, an assistant dean of students was ordered by her higher-ups to underreport sexual assault cases. Rarely does a week go by without a new scandal.

“I don’t think we need any new laws, I don’t think we need to redefine rape,” says Jody Raphael, a visiting professor at DePaul University College of Law and author of Rape Is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis. “Whatever law you put on the books, if the police won’t investigate, if the prosecutors won’t bring charges, if the colleges won’t tell the police, if the colleges won’t investigate, it doesn’t matter what laws are on the book.”

New legislation has the potential to change things, but only if colleges are held accountable, too. Stricter rules are not enough; colleges need to enforce these policies, and they need students, professors, and everyone involved to report them if they don’t. Maybe if fellow universities start to lose their federal funding, schools like Florida State won’t be quite so cavalier about putting the football star above the freshman.