April is Sexual Assault Awareness Month. For American colleges and universities, the event highlights major challenges in handling what has been an intractable problem.
At the Ethics Center, we honor the month by talking with our visiting scholar Michael McFarland, SJ, who recently stepped down as president of College of the Holy Cross. Holy Cross was identified in a 2010 report by the Center for Public Integrity, Sexual Assault on Campus, as a "notable exception" to the generally unsatisfactory way the issue is handled at most institutions of higher earning.
First some background: Statistics about sexual assault on campuses are highly contested, but according to the National Institute of Justice, "several studies indicate that a substantial proportion of female students — between 18 and 20 percent — experience rape or some other form of sexual assault during their college years." (For an interesting analysis of the problems with reporting, see Campus Sexual Assault Statistics Don't Add Up.)
Most of these cases of assault will not result in any finding of culpability. A 2005 Chicago Tribune study of six campuses in Illinois and Indiana revealed that of 171 sex crimes reports, 12 resulted in arrests and four in convictions, only one of those involving a student-on-student attack.
When students choose to bypass the criminal justice system and have the assault adjudicated by the campus judicial system, they often find their assailants face minimal punishment: The Center for Public Integrity analyzed statistics on about 130 colleges and universities in the database of the U.S. Justice Department's Office on Violence Against Women. They report,
Though limited in scope, the database offers a window into sanctioning by school administrations. It shows that colleges seldom expel men who are found “responsible” for sexual assault; indeed, these schools permanently kicked out only 10 to 25 percent of such students.
Sadly, while most perpetrators were not expelled, many victims dropped out or transferred rather than having to confront their attackers in class or on the quad. In a particularly tragic case, St. Mary's College freshman Lizzy Seeberg killed herself in 2010 after reporting that she had been raped by a Notre Dame football player, who was not even interviewed by campus police until after her suicide.
Trying to sweep sexual assaults under the rug is unfortunately common on many campuses. McFarland took a different approach at Holy Cross. The college is so transparent about the problem that it includes third-party reports of sexual assault in its crime statistics.
Holy Cross also has clear procedures for handling sexual assault cases, which are communicated to all students. "Typically, the first contact for a victim will be a fellow student," McFarland says, so simply training campus safety personnel or counselors will not necessarily reach the people who need the information.
Students go to their friends because, McFarland explains, "they are often confused and ashamed. These cases almost always involve acquaintance rape." The victims may feel they were partially at fault or may worry about what will happen to their assailant or what will happen to their own life on campus if they make a complaint.
At Holy Cross, victims are encouraged to go to campus police, where specially trained officers deal with sexual assaults. The victim's medical needs are the first priority, and the college pays for rape kits. Students are also referred for counseling.
Campus Safety also helps victims to understand their options in pursuing the case. These can range from a "stay away" order against their attacker to a campus hearing to a criminal proceeding. "We always make sure they know they have the option of going to criminal authorities, but most people don’t because it’s such an awful experience," McFarland says. Defense attorneys often go after the character of an accuser, making her prior sexual behavior or drinking an issue in the case and a matter of public record.
In the Seeberg case, for example, reporter Melinda Henneberger of the National Catholic Reporter found a campaign to portray the young woman as the unhinged aggressor in the encounter. The alleged assailant's lawyer called her story "a complete phony lie," and claimed, incorrectly, "this had happened before." Also, prosecutors too often decline to pursue sexual assault cases, which can be "he said; she said" disputes without other eye witness testimony.
Fear of such outcomes makes many students prefer campus judicial processes. These vary widely from school to school. Especially in a private institution, "you can define them the way you want as long as you’re consistent and they’re not discriminatory," McFarland says. Students at Holy Cross have a choice between a hearing before an administrative official or a board made up of faculty, students, and staff.
Holy Cross, like many other schools, uses a "more likely than not," or "preponderance of the evidence" standard in determining culpability. This is one of the more controversial aspects of campus proceedings. "When you only have to be 50.01% sure about the evidence, it's easy to make a mistake or to let bias, conscious or otherwise, determine the outcome—especially in campus justice systems," Robert Shibley, senior vice president of Foundation for Individual Rights in Education, has argued.
Also, neither the accused nor the accuser can have legal representation in the Holy Cross hearing. New guidelines from the federal government on investigating sexual harassment and assault on campus "strongly discourage" universities from letting the accused "question or cross-examine the accuser" during a hearing. Appeals processes must be available to the accuser as well as the accused, which is, of course, a departure from the protection against double jeopardy that is guaranteed in criminal trials. "In short, universities are institutionalizing a presumption of guilt in sexual assault cases," writes Hoover Institution Fellow Peter Berkowitz in the Wall Street Journal.
McFarland counters that, in reviewing transcripts from hearings, he " finds the boards very fair. They based their decision on evidence and really agonized over it." Also, he points out that the sanctions available to universities are much less stringent than those a court can impose. "The most you can do is expel the offenders. You don’t affect their record, they don’t have to pay a fine, they aren't labeled as a sex offender, and they don’t go to jail." Institutions of higher learning, he argues, can set their own standards for acceptable behavior. "You're really just making a decision about whether you want to keep that person as a student."
Willingness to come to such decisions is what distinguished Holy Cross in the Center for Public Integrity Study. The Center interviewed 33 students whose cases were handled by campus processes. Of the 33, more than half said their attackers had been found responsible. Of those, only four were expelled, two of them after repeat offenses. One young woman told the Center her attacker was suspended—for the summer term.
In contrast, at Holy Cross, "We were willing to take action," McFarland says. "As president, I would have to sign off on any expulsions, and people were expelled, which is very unusual."
But McFarland wasn't willing to have Holy Cross' entire approach to sexuality on campus focus on the negative. In a letter to students, he wrote:
We are now required by federal law to develop and disseminate a Policy on Sexual Assault. We have taken that as an opportunity for a broader reflection and discussion of our expectations regarding the use of one of our greatest gifts, our sexuality. Our intention was to develop a policy that would be situated within a broader context aimed at educating the whole person.
Holy Cross students receive a booklet that challenges them to make decisions about sex that affirm these basic values: free consent, commitment, mutuality, equality, fruitfulness/respect for the procreative potential of sexuality, and justice. These ethical principles, McFarland argues, should be part of a university's approach.