Friday, March 27, 2015

Who gets the burden: Should universities be allowed to handle sexual assault cases?

The increase of Title IX violations and lawsuits against universities has led many to question why sexually motivated crimes can be investigated, tried, and decided upon by educational institutions instead of criminal proceedings through the justice system.

 In addition to promoting gender equality in athletics and student organizations, Title IX also protects individuals from many other forms of gender-based discrimination. Additionally, it requires schools receiving federal funding to actively combat sexual assault and gender based violence. Under the Clery Act, schools are also required to inform students who have experienced any type of sexual assault of all their options, including the option to report the incident to the police and pursue criminal charges.

The current policies require educational institutions to have some disciplinary process for complaints of sexual harassment and sexual violence. These standards include investigating complaints in a prompt manner and ensuring a non-hostile environment for students reporting an incident. Many large universities currently have judicial boards or standards boards that hear the cases, review the evidence, and decide on the appropriate action. One of the main reasons a student might opt to pursue only a disciplinary hearing through an educational institution instead of a criminal proceeding is because the standard of evidence is ‘preponderance of the evidence’ not the criminal standard of ‘beyond a reasonable doubt,’ since Title IX is a federal civil right. This standard of evidence makes it more likely that a student will prevail in his or her case and see some type of action taken in his or her favor. The main issue is that many educational institutions, specifically colleges and universities, seem to either be apathetic to the problem or are ill equipped to handle these cases. 

In recent Title IX lawsuits, many students who have faced sexual harassment or assault claim that the campus security and administrators were unhelpful and even discouraged them from reporting their incidents. In a recent case, the University of Connecticut paid a $1.3 million dollar settlement to end a Title IX case brought against them. One student involved in the case said that a female university police officer said that “women have to just stop spreading their legs like peanut butter,” or rape will “keep on happening till the cows come home.” Another student decided to go forward with the Title IX case after the school’s disciplinary actions were insufficient. The student went through a disciplinary hearing and her attacker was expelled from the university. However, ultimately he was able to return to campus without any notice given to her. All the women involved in the University of Connecticut case claimed that they were not adequately informed about their legal options.

The University of Connecticut is just one of the 43 institutions of higher learning that the United States Department of Education has identified as having an open Title IX investigation. Colleges and universities have an interest in keeping their sexual assault numbers low and discouraging victims of assault from pursuing action against their attackers. Under the Clery Act, schools have to make their sexual assault statistics available to the public and the fewer incidents reported the better.

Based on the recurring issues, it seems like the appropriate action to take would be not allowing institutions of learning to play judge and jury, but rather to allow the justice system to intervene in these types of incidents in schools. However, forcing students to file criminal proceedings instead of disciplinary hearings may discourage students from reporting instances of sexual assault and sexual violence. The purpose of allowing institutions such as colleges and universities to have disciplinary hearings instead of filing for criminal proceedings is seemingly a way to help victims of sex-related crimes to seek justice without having to hire an attorney, deal with a criminal trial, and face a higher standard of evidence; but when universities are constantly failing to provide support for students who choose not to file criminal charges there is no justice for the victim.

If institutions for higher education are no longer deemed fit to handle cases of sexual assault and sexual violence, there will be an impact on practitioners in the field of criminal law. There will be many victims who choose to take their case to criminal court, which would impact the caseload of local courts as well as local prosecutors and public defenders. An increase of cases with little to no evidence can be a financial burden on the local court systems. There will also be victims who prefer not to go through a criminal proceeding, and not report these crimes at all. This course of action would be detrimental to the field of criminal justice because it would allow perpetrators the ability to commit sex-related crimes without fear of consequence. These issues present a frustrating dilemma; which entity is best equipped to handle cases of campus sexual assault, the justice system or the school? At this point, there does not seem to be a clear answer.

Monisha Rao
Staffer, Criminal Law Practitioner

Photo by lculig via ShutterStock


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  2. This article is very well written. I completely agree that institutions must first take preventive action for avoiding sexual assault and then they must be cooperative in taking the case ahead and letting the Law practitioners interfere.Thanks a lot. Looking forward for more.
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