By Jessica Ochoa
Content Warning: Discussion of sexual assault
Justice Brett Kavanaugh’s confirmation hearing brought the topic of sexual assault to the national stage.[1] In protest to his confirmation, many women began to speak up about their own sexual assaults or negative interactions with Kavanaugh; however, many still questioned why Dr. Christine Blasey Ford had waited thirty-six years to report the assault.[2] Despite the burgeoning open environment for reporting sexual assault, many survivors do not report their assaults for a variety of reasons, the most cited being a fear of retaliation, a belief that the police are powerless, and the belief that the assault is a personal matter.[3] Survivors are particularly hesitant to report sexual assault when it occurs on college campuses.[4]
Title IX of the Higher Education Amendments of 1972 provides for equal education among the sexes.[5] Title IX protections incorporate claims of sexual harassment and assault on college campuses.[6] Federal law requires that college campuses address cases of sexual assault that are reported to school officials.[7] Title IX requires universities to take action when sex-based discrimination is reported to a “responsible employee.”[8] Under Title IX, “[a] responsible employee includes any employee who has the authority to take action to redress the harassment, who has the duty to report sexual harassment to appropriate school officials, or an individual who a student could reasonably believe has this authority or responsibility.”[9] This definition has been applied expansively by colleges because of their desire to be seen as conforming to Title IX to avoid any repercussions, such as a loss of federal funding.[10]
In 1991, Congress passed the Clery Act, which requires schools to make college crime statistics readily available to students and their families.[11] The Clery Act supports the purpose of Title IX “by promoting transparency and awareness of campus crime [and] increase[ing] an accurate reporting of incidents[.]”[12] This goal is accomplished by requiring that universities publish statistics of crimes, such as murder, sex offenses, and robbery, among others, for the most recent calendar year, as well as the two prior years.[13] Further, when a sexual assault is reported, a school is required to balance a victim’s report and confidentiality against the interest of the community in holding perpetrators accountable.[14] The Clery Act also describes the role of a campus security authority as an employee of the school who is responsible for reporting any cases of crimes such as murder, robbery, sex offenses and arson.[15] They are also responsible for providing the survivor with possible courses of action, and, should the survivor choose to go to the police, campus security authorities are required to aid the survivor in bringing forth a case.[16]
Currently, several states have proposed legislation to complement existing Title IX requirements that would also require universities to report incidents of sexual assault to local law enforcement.[17] Virginia has become one of the first states to pass a bill that requires some sort of mandatory reporting.[18] The catalyst was the infamous Rolling Stone article on the supposed sexual assault at the University of Virginia and the national cry for better protection for victims on college campuses.[19] However, this type of legislation has faced opposition from survivor groups that argue that this legislation would deter survivors from coming forward about their sexual assaults.[20]
Mandatory reporting to law enforcement deprives survivors of the right to choose whether they would like to move forward with a case or investigation.[21] A number of scholars have expressed similar concerns; they believe that because mandatory reporting would require reporting despite the survivor’s wishes, it interferes with a person’s autonomy.[22] Sexual assault can lead survivors to feel that they have been deprived of the ability to choose and do not have control over their lives. [23] Statutes that require mandatory reporting “implement[. . .] the legislature’s goals of punishing offenders at the cost of forcing victims to enlist in a criminal justice system without their consent.”[24]
States legislatures that have proposed such legislation appear to believe that the involvement of an independent entity is beneficial for both the school and the student.[25] However, because the legislation resembles legislation that is commonly in place to protect child victims, victim groups argue that the legislation “infantilizes” survivors, which is “contrary to Title IX’s purpose.”[26] Additionally, many survivors might want to report incidences to their schools and not law enforcement. The fear of involving the police may prove more traumatic than the supposed “support” that it provides.[27] There are many reasons that a victim may want to forego a police report:
Survivors choose not to report to police for any number of reasons: fear or distrust of law enforcement; desire to protect their assailant, who may be a former or current partner or family member; unwillingness to participate in a retraumatizing criminal process that takes years to resolve; fear of deportation or criminalization themselves; or recognition of law enforcement’s historical and enduring failure to hold perpetrators accountable at all. (According to the Rape, Abuse, and Incest National Network, only three in every 100 rapists ever spend a day in jail.) For many male and gender-queer survivors, state laws fail to recognize their experiences of harm as violence at all.[28]
These police reports would be made without the victim’s consent that proves a further violation of their autonomy atop of the assault itself.[29]
One might argue that survivors who do not wish to have their experiences reported to police should just not speak to responsible employees about their experiences. However, not discussing the matter may not only affect survivors’ mental health, but also their physical health; if survivors delay getting medical attention their physical injuries may worsen.[30] As it is, forcing certain faculty or staff to serve as responsible employees deprives survivors of their ability to speak openly with trusted professors about their experiences. Statutes requiring schools to then report all incidents to law enforcement simply add another layer to the problem. Additionally, a student might wish to report incidents to their school, and not law enforcement, because the school’s judicial process is often not as laborious as it would be to report to the police.[31] Further, the threshold to find a student responsible of sexual assault through a school’s process, which can be either clear and convincing evidence or a preponderance of the evidence, is much lower than that of a criminal claim, which would require evidence beyond a reasonable doubt; thus, it is more likely that survivors can assert their rights and seek safety on campuses than it is that they can win a conviction through the criminal justice system.[32]
The urge to aid survivors of sexual assault by involving the police, while well intentioned, can exacerbate the harm of the sexual assault itself. Sexual assault can lead to a sense of loss of autonomy, and mandatory reporting exacerbates this feeling by taking the choice of when and to whom to report from the survivor. To come forward with a claim of sexual assault is incredibly difficult, and when survivors know that once they do, they will no longer be in control of the narrative, they may be severely dissuaded from reporting. Survivors of sexual assault should always retain the ability to control their own story, and while the intentions of the legislators are good, the desire for justice cannot overshadow the voice of the survivor.
[1] Jessica Ravitz, Their Sexual Assaults Happened Decades Ago. Now Women See Kavanaugh’s Accusers Come Forward and Wonder If They Could Do the Same, CNN (Sept. 27, 2018, 6:46 AM), https://www-m.cnn.com/2018/09/26/health/sexual-assault-reporting-kavanaugh/index.html.
[2] Eli Watkins, Timeline: How the Kavanaugh Accusations Have Unfolded, CNN (Sept. 17, 2018, 4:46 PM), https://www.cnn.com/2018/09/17/politics/kavanaugh-ford-timeline/index.html.
[3] The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/criminal-justice-system (last visited Oct. 30, 2018); Lindsey Cook, Student Victims Less Likely to Report Rape, U.S. News (Dec. 12, 2014, 9:46 AM), https://www.usnews.com/news/blogs/data-mine/2014/12/12/student-victims-less-likely-to-report-rape.
[4] Allie Bidwell, ‘Mandatory Reporting’ Hinders Fight Against Sexual Assault, Critics Say, U.S. News (Feb. 19, 2015, 5:40 PM), https://www.usnews.com/news/articles/2015/02/19/mandatory-reporting-bills-hinder-fight-against-sexual-assault-critics-say.
[6] Franklin v. Gwinnett Cnty Pub. Sch., 503 U.S. 60, 74-6 (2011) (holding that a school may be required to pay damages to a student who is a victim of sexual harassment); Davis v. Monroe Cnty. Bd. Of Educ., 526 U.S. 629, 645-47 (1999) (holding that schools may be held responsible for student-on-student sexual harassment if the school is aware of the harassment and the harassment affects the victim’s access to a meaningful education).
[7] 20 U.S.C. § 1681 (2018); Anne P. Steel, Violating Victims’ Rights to Privacy and Personal Autonomy Under Virginia’s New Mandatory Reporting Requirements, 24 Wash. & Lee J. Civ. Rts. & Soc. Just. 311, 316-17 (2017); Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 75-77 (2017).
[9] Brett A. Sokolow, Ass’n of Title IX Adm’rs, Who Is A Mandated Reporter, Of What? – Getting Some Clarity, Atixa, https://atixa.org/wordpress/wp-content/uploads/2012/01/WHO-IS-A-MANDATED-REPORTER-OF-WHAT-GETTING-SOME-CLARITY.pdf (last visited Oct. 30, 2018) (including a list of guidelines for mandatory reporters under the Clery Act, Title VII and Title IX).
[10] Know Your Rights: Title IX and Sexual Assault, Am. Civil Liberties Union, https://www.aclu.org/know-your-rights/title-ix-and-sexual-assault (last visited Nov. 3, 2018).
[11] 20 U.S.C. § 1092-8(A-B) (2018).; Steel, supra note 7, at 319.
[13] 20 U.S.C. § 1092-9(f) (2018); Steel, supra note 7, at 321. In 2013, the Violence Against Women Act amended the Clery Act to further expand the reporting duties of universities to include dating violence, domestic violence, and stalking. Most recently, the Campus SaVE Act attempted to expand the rights of victims of sexual assault. Similar to the Clery Act, this act aims to increase the amount of statistical data that would be available to prospective and current students. Further, it requires universities to have procedures, such as equitable disciplinary processes and educational awareness programs, in place regarding violence toward women.
[14] 20 U.S.C. § 1092-4(A) (2018); Steel, supra note 7, at 320.
[15] 20 U.S.C. § 1092(f) (2018).
[17] Steel, supra note 7, at 322.
[18] Va. Code Ann.§ 23.1-806 (2018); Bidwell, supra note 4; Bob Brown, House, Senate Approve Sexual Assault Bills, Richmond Times-Dispatch (Feb. 10, 2015), https://www.richmond.com/news/virginia/article_50bc7d86-9ea8-5b57-93ce-b5106572a103.html.
[19] Steel, supra note 7, at 322-35.
[22] Steel, supra note 7, at 334-35; Weiner, supra note 7, at 88-91.
[23] Steel, supra note 7, at 336.
[26] Weiner, supra note 7, at 104-05.
[28] Dana Bolger & Alexandra Brodsky, Victim’s Choice, Not Police Involvement, Should Be Lawmakers’ Priority, MSNBC (Feb. 12, 2015, 6:49 AM), https://www.msnbc.com/msnbc/campus-rape-victims-choice-should-be-lawmakers-priority.
[29] Steel, supranote 7, at 337-38.
[30] Weiner, supra note 7, at 104-05
[31] Valerie Strauss, Why Sexual Assault Cases on Campus Are Often Investigated by School, Not Police, Wash. Post (May 2, 2014), https://www.washingtonpost.com/news/answer-sheet/wp/2014/05/02/why-sexual-assault-cases-on-campus-are-often-investigated-by-school-not-police/?utm_term=.2b7217fb0f0c.
[32] Id.; Q & A On Campus Sexual Misconduct, U.S, Dep’t of Educ., Office of Civil Rights (Sept. 2017), https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.