The Silencing of Sexual Assault on College Campuses

By Adriana Ovalle

For most adolescents, going away to college is a rite of passage. Though parents send their kids off to college with some trepidation, most still take for granted that college campuses are safe, and that even if any problems arise, that the school and its administrators will be there to help. Over the past few years, several high profile shootings have brought increased attention to on-campus violence.^[1] This type of horrific violence certainly deserves the amount of attention it receives. However, there is another type of violence that is much more pervasive across all college campuses, yet is given much less attention: Sexual Assault.  A Department of Justice commissioned a report estimates that one in five female college students are raped during the course of their college career.^[2] This is most likely a conservative figure considering that sexual assault is an extremely underreported crime, especially on college campuses.^[3] The DOJ report also states that a mere 5% of completed and attempted rapes are reported.^[4] Sexual assault goes unreported for various reasons.  One reason is that in 80% to 90% of sexual assaults on college campuses, the victim and the assailant know each other.^[5] For many young women, knowing their attacker personally, combined with the fact that drugs or alcohol are often involved, can make it difficult to recognize or admit that sexual assault occurred, thus reducing the likelihood of reporting.

This report is an indictment of our society.  If sexual assault on college campuses is as pervasive as the report suggests and so few women actually say something, there are millions of women whose mental and medical health is severely damaged.   It also means there are thousands of perpetrators going unpunished.  Though the report relates disquieting statistics about under-reporting, what happens to many of the cases that are reported is even more troubling.  Local law enforcement is usually reluctant to pursue these cases because of the lack of evidence, the prevalence of “he said/she said” issues, and because the involvement of drugs or alcohol regularly makes it difficult to determine what happened.^[6] Thus, student victims’ only recourse is often the campus judiciary process, which, in many cases is quite obscure.^[7] The campus process sometimes leads to painful face-to-face mediation between the victim and the alleged assailant.^[8] Such a confrontation can further injure the victim while assailants are usually let go with little to no repercussions.^[9]

Though schools are allowed to individually choose how they respond to claims of sexual assault, they are still required to follow federal regulations. Title IX and the Clery Act require schools to respond to sexual assault claims and to offer certain rights to the victims.^[10] Under Title IX, a college can be held liable if it is aware of sexual assault or harassment but fails to take any corrective action.^[11] Title IX makes it possible for students to ask the Education Department’s Office for Civil Rights to investigate a school’s response to sexual assault; this saves the student from having to sue in civil court in order to seek a remedy.^[12] However, this measure is rarely used because many students are simply unaware it exists, even those that are aware might be frightened away by the possibility of an arduous legal process.  An additional federal reporting requirement on colleges is The Clery Act (“Act”).  The Act applies to all colleges participating in federal financial aid programs and requires that those colleges collect, retain, and report crime that occurs on or near campus.^[13] An amendment to the Act sets forth the “Campus Sexual Assault Victims’ Bill of Rights,” which requires colleges to offer victims of sexual assault certain rights.^[14] School compliance with the Clery Act is monitored by The Education Department, and if a school is found to be in violation of the Act, then the Education Department may impose fines and penalties.^[15] However, the Department of Justice report found that compliance with the Act has been “uneven,”^[16] which could be due to vague statutory language and the fact that it took fifteen years for the Education Department to release a compliance handbook for schools.^[17]The Department of Justice found that although most schools comply with the reporting requirement, only about one-third “do so in a way that’s fully consistent with federal laws.”^[18] Furthermore, not all schools provide the level of resources and rights that the federal laws intend.^[19] For example, only about half of the schools inform victims how to file criminal charges.^[20] If this fundamental step in the process is not readily accessible to the victim, how do we begin to fix under-reporting?

Sexual assault is a difficult topic, one that we don’t like to discuss in a polite society because we are afraid of being politically incorrect or we simply don’t know how to talk about it. However, by stifling the problem, society is sending young women the message that sexual assault is their fault and that they must deal with it on their own. Colleges must get over their fear of appearing “unsafe” by reporting the true number of sexual assaults and by following up on claims. If not, they face penalties and lawsuits. For example, Arizona State University (ASU) is in the middle of a lawsuit brought by a former student who alleges that ASU failed to comply with its duties under Title IX after she alleged she was raped at a fraternity party.^[21] However, schools should not wait to be sued before recognizing that this problem needs serious attention and that the campus judicial process needs reformation to provide victims with justice.

^[1] Brian Ferskos, Colleges increase efforts to identify violent students, Jan 30, 2011, STAR NEWS ONLINE, http://www.starnewsonline.com/article/20110130/ARTICLES/110139981?Title=Colleges-increase-efforts-to-identify-violent-students.
^[2] U.S. DEP’T OF JUSTICE, Sexual Assault on Campuses: What Colleges and Universities are Doing About It, 2 (2005),http://www.ncjrs.gov/pdffiles1/nij/205521.pdf.
^[3] Id.
^[4] Id. at 3.
^[5] Id. at 6.
^[6] PublicIntegrity.org, Sexual Assault on Campus, http://www.publicintegrity.org/investigations/campus_assault/# (last visited Jan. 15, 2011).
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] PublicIntegrity.org, Sexual Assault on Campus, http://www.publicintegrity.org/investigations/campus_assault/the_law/, (last visited Feb. 20, 2011).
^[11] Id.
^[12] PublicIntegrity.org, Sexual Assault on Campus, http://www.publicintegrity.org/investigations/campus_assault/the_law/ (follow “THE CLERY ACT” hyperlink) (last visited Feb. 20, 2011) [hereinafter The Clery Act].
^[13] Id.
^[14] Id.
^[15] U.S. Dep’t of Justice, supra note 1, at ii.
^[17] The Clery Act, supra note 12.
^[18] U.S. Dep’t of Justice, supra note 1, at ii.
^[19] Id.
^[20] Id.
^[21] Kyle Patton, Former Student Sues ABOR Over Sexual Assault Case, STATE PRESS,  July 18, 2010, available at http://www.statepress.com/2010/07/18/former-student-sues-abor-over-sexual-assault-case/