Virtually all college administrators agree it would be wrong to ignore sexual assault reports, but some feel unequipped to handle such cases. Regardless, they face suits from both sides — under Title IX for failing to act forcefully enough to ensure their campuses are safe for women, and by accused assailants claiming they were treated unfairly.
But the most vigorous criticism has come from civil libertarians, who argue the Obama administration's guidance undermines the rights of the accused. They've focused on the requirement that colleges use a "preponderance of evidence" standard in such cases — essentially a belief guilt is more likely than not, and a much lower standard than defendants enjoy in criminal court.
Illustrating the dangers, they say, are cases like that of a former North Dakota college student who was found responsible for sexually assaulting a fellow student by a campus disciplinary board. Later, police investigating the incident cleared him and brought false-reporting charges against his accuser. Still, he struggled to clear his name and has yet to return to school.
Title IX, these critics claim, is a blunt legal weapon for addressing sexual assault on campus. They too see a threat to access to education — but for the accused.
Studies vary in their findings of how common sexual assault is at American colleges. None, however, paint a reassuring picture. An often-cited 2007 study estimated one in five college women were victims of an attempted or completed sexual assault. A national telephone survey estimated 20 to 25 percent of women would experience a completed or attempted rape in college.
A 2003 Justice Department study of violent crime calculated a lower rate: about six college women per 1,000 per year, or roughly 3 percent overall during a college career.
"It's disgusting how much this goes on and how unaware people are of it," said Susannah Johnson, a freshman at Wheaton College outside Boston, whose account of being raped by a former boyfriend on campus last year went viral, prompting nearly 200 e-mails to her from women at other area colleges sharing their own stories.
Fewer than 5 percent of attempted or completed rapes are reported to law enforcement or campus authorities. That endangers others, because most campus rapes are committed by serial offenders (though usually not strangers).
Last April, the Department of Education's Office for Civil Rights (OCR) sent colleges a "Dear Colleague" letter, explaining its interpretation of Title IX and outlining the steps it believes colleges must take in response to sexual assault on campus. The 19-page letter carries over from past guidance that has been in force since the Clinton administration. But it was the first such guidance to address directly how Title IX applies to sexual violence, not just harassment.
The letter reminds colleges they must provide "due process" for the accused, such as giving both complainant and accused timely access to relevant information. But the focus is protections for the accuser. Schools must act promptly to investigate, not waiting for a criminal case to proceed. If necessary, they must take interim steps to protect the complainant before a verdict is reached, such as separating the accused and accuser in classes and dorms. In such cases, the burden of inconvenience should fall on the accused.
They also must offer immediate support to victims, and ensure cases are resolved before perpetrators graduate. Historically, some advocates say, colleges trying to avoid messy cases have simply "run out the clock." That's no longer an option.
The case for these strong measures lies with women like 24-year-old Ally Clendineng, who contends she was driven away from Northern Iowa Area Community College by a 2006 rape and the college's inadequate response. Clendineng was fumbling for her keys after an evening out with friends when a guy she vaguely knew let her into a dormitory. He'd been drinking, and she brushed him off, but he followed her to her door. For reasons she says she can't explain, she agreed to hang out with him in his room for a few minutes. She sat on his bed, and soon he lay down beside her and pulled her toward him.
"He kept me pinned," Clendineng recalled. Eventually, "I just stopped trying to stop it because I couldn't stop it," she said.
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