On campus, debate over civil rights and rape

By Justin Pope

Associated Press

Published: Saturday, April 21 2012 12:00 a.m. MDT

This Tuesday, Jan. 17, 2012 photo shows Caleb Warner in his apartment in Fargo, N.D. The former University of North Dakota student's college career was cut short after being falsely accused of sexual assault about two years ago. The 25-year-old man now lives in Fargo, N.D., and works as a delivery driver. Despite being cleared of all charges and having his accuser charged with making a false report, Warner says he has moved on and doesn't plan to resume his studies at UND or any university. "It's not where I thought I'd be," he says.

Ann Arbor Miller, Associated Press

For months after Kristina Ponischil was raped at a party in her off-campus apartment, her life at Western Washington University was hell.

Police wouldn't act, as often happens in college towns with "he said, she said" accounts of alcohol-influenced student encounters behind closed doors. Despite a restraining order, she kept running into her assailant on campus, prompting panic attacks.

Once, the man who'd raped her brushed up against Ponischil in the bookstore, then smirked.

"I was just constantly worried that I would run into him again," Ponischil said.

But if the criminal justice system let Ponischil down, Western Washington did not. When she finally told an administrator what happened, the school sprang to action, offering her the support she needed. Perhaps most importantly, the campus judicial system, using a lower standard of proof than criminal courts, suspended her assailant, removing him from campus until she graduated in 2009.

"I was able to start healing," she said. "When I was constantly afraid, there was no healing. It was just constant fear."

The college's response wasn't just a moral obligation; it was also a legal one.

June marks the 40th anniversary of Title IX, the federal gender-equity law that has made headlines mostly on the sports pages. But over the last decade or so, through a series of court rulings and more recently controversial guidance published by Obama administration, Title IX has shifted onto a different patch of contentious terrain — sexual assault on college campuses. It is transforming how colleges must respond to allegations of sexual violence.

The reasoning: Title IX's key language, running barely 30 words, forbids sex-based discrimination that denies access to educational opportunity. It's long established that sexual discrimination and harassment can create an atmosphere that denies women their right to education. What's newer is applying the logic to even a single episode of sexual assault.

Typically, colleges enjoy wide leeway in responding to student misconduct, whether that means using a disciplinary board to enforce their own rules or simply punting the matter to law enforcement. But as Title IX is now interpreted — and would be reinforced under a new version of the Violence Against Women Act awaiting a Senate vote — colleges must respond if a sexual assault is reported, even if prosecutors refuse to get involved. Moreover, they face often precise instructions from the government for conducting their investigations and proceedings, and even the standard of proof to use.

Victims' advocates welcome what they call an overdue push for colleges to take seriously a problem they've long swept under the rug. The latest Title IX guidance also requires colleges to train staff, and develop and publicize policies to help sexual assault victims, or risk large legal judgments. And they must remediate the harm to victims, for instance by providing counseling.

More broadly, these advocates contend Title IX is also reframing the entire discussion about sexual violence on campus, away from blaming victims and toward the big issue at stake: their right to an education.

But Title IX's expanding role in campus sexual assault cases has proved contentious, on a variety of fronts, even among victims' advocates.

Some argue channeling sexual assaults to campus proceedings lets the criminal justice system off the hook. Others argue the problem is colleges can't or won't hand down tough punishments. Still others oppose some of what the government now requires of colleges. For instance, schools may be required to pursue a case even if the victim wants to drop it, and they cannot offer absolute promises victims' anonymity will be protected.

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