Must campus rapists face the law? Not always, say some survivor advocates

Mandating that colleges report sexual assaults to the police before they conduct their own investigations, as the Safe Campus Act would do, seems like common sense. But women's advocates and universities say it ignores unique factors that make campus rapes extremely difficult to prosecute – and to heal. 

Betsy Blaney/ AP/ File
A "No Means No" banner protests sexual assault at Texas Tech University in Lubbock, Texas in this October 2014 file photo. A fraternity at the school lost its charter after photos emerged of a party sign that read, in part, "No Means Yes."

Sixty-five percent of rapes and sexual assaults went unreported between 2006 and 2010, according to the Bureau of Justice Statistics. 

It's become nearly impossible for Americans to ignore how many of those attacks take place on college campuses: Nearly one in four female students becomes a victim, according to an oft-cited statistic from the Association of American Universities that, in recent years, has become a rallying cry for the wave of awareness-raising student movements.

Those numbers are too high, everyone agrees. But is mandated reporting the way to bring them down?

The Safe Campus Act, a bill fraternities and sororities have spent $200,000 to promote on Capitol Hill, has met backlash from just about every victim advocacy group and university association, who say mandated police reporting is, counter-intuitively, not the answer.

On Thursday, Alpha Phi became the first national sorority to speak out publicly against the act, which would prevent colleges from conducting their own investigations into alleged rapes until the survivor had reported to police as well, potentially making it harder to "convict" a suspect in terms of school punishments, like expulsion. 

"We believe our sisters who are survivors should have choices in how, when and to whom they go to for support or to report the crime," the sorority said in a statement released to the Huffington Post. 

Advocates of the bill claim that, to seriously tackle sexual assault, it's only logical to guarantee that the justice system get involved, and quickly; as time passes, rape becomes even more difficult to prove. 

"Currently, when the police aren’t called, allegations of criminal misconduct are adjudicated by a patchwork campus system that has proven unable to fairly and competently adjudicate these accusations, frequently sacrificing the rights of the accuser, the accused, or both parties," the Foundation for Individual Rights in Education (FIRE) argued in July. 

As the bill's supporters point out, a false rape accusation can ruin a young man's future. Columbia University found student Paul Nungesser not guilty of rape, but his accuser, fellow student Emma Sulkowicz, made a thesis project out of a performance art piece in which she carried a mattress everywhere she went (including the graduation stage), calling attention to the accusation. Mr. Nungesser, now a graduate, has since sued Columbia and Ms. Sulkowicz's advisor

In a swirl of changing attitudes towards sex, and colleges themselves, schools are finding it harder to guarantee one of their most basic missions: to keep all students safe, whether victim or accuser. 

That's why the law should step in, the Safe Campus Act believes; it's simply not schools' responsibility, or within their power, to play investigator, jury, and judge. 

But just as rape is a unique crime, college is a unique place, and many universities say they cannot stand back and let attacks go unpunished – or at least uninvestigated – while survivors face the difficult question of whether to report rapists to the police.

"I always ask students about an option to report to the police, and many respond that 'If I had to report to police, if I knew it was a requirement, I would not be here,'" Indiana University Director of Student Ethics Jason Casares told the Huffington Post. 

In June 2014, Sen. Claire McCaskill (D) of Missouri, who has spoken out against the bill, held a roundtable discussion with survivors' advocates and law enforcement officials to tackle the problem of underreporting. Why are so many young women reluctant to report crimes when, in theory, they could save future victims from the pain they've been through?

Often, pain itself is the answer: the prolonged interrogations and examinations that some survivors say is like reliving the attack itself. Rape trials often focus on a victim's previous sexual experiences, adding to publicity and humiliation that hits especially hard on a small college campus, where a rape accusation stands to change both accuser and accused's social circles, job prospects, and even enrollment. 

But that seriousness is exactly why law enforcement should always be involved, the bill's creators say. The Safe Campus Act would also permit colleges to use their own standard of evidence, whereas today, by law, they must be only 51 percent certain that a crime was committed to punish an accused student. If the bill is passed, some hope colleges would adopt the typical criminal trial standard: 99 percent certainty.

The act's critics point out that it would not encourage such a high burden of proof for other student-to-student crimes, like theft. 

"The goal of any campus sexual assault legislation should be to encourage survivors to report crimes," New York Sen. Kirsten Gillibrand told reporters in late October. "This bill does exactly the opposite."

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