So I'm going to do something I try to avoid doing, generally. I'm going to intentionally wade into an online brouhaha within the feminist blogging community when I know that it may result in some trolls eventually finding me and abusing me anonymously from afar. I could do this on a variety of topics every week, but I choose not to in an effort to maintain my own sanity. But I finally found a topic I feel I have to weigh in on, so here I go ladies and gentlemen. I’m going in. And I’m taking you along for the ride. You should know that (a) this is no way related to perfume, and (b) is about sexual assault, so I am giving you a TRIGGER WARNING right now.
There has been a debating brewing for a while now about the way colleges and universities adjudicate sexual assault cases.FN1 Amanda Hess at The Sexist posted an article on Monday exhorting higher education institutions to send out campus alerts when acquaintance rapes occur. The story really begins with this earlier piece, also from The Sexist, which was a response to a DC local news story about George Mason University’s decision not to send out campus alerts because they “don't believe there is a threat to the campus community” such that Clery Act reporting would require campus notification. (I will state for the record that this is a heinous statement, and I think one that is more about the Clery Act definitions of when an institution is required to send out an alert than whether or not they perceive sexual assaults in college communities as a legitimate problem/threat to student health and safety.)
Before I tell you why, with all due respect to The Sexist, that I strongly disagree with her position, I’ll give you a bit of my bona fides, also known as (a) why I feel compelled to weigh in here, and (b) why the hell my opinion matters. (See all the footnotes if you care, otherwise, skip ahead.) I focused very specifically on two things in law school any degree of depth: legal philosophy as it relates to and is shaped by oppression/privilege, and crime victims’ rights litigation. FN2 Most of my pro bono work was direct advocacy for victims of domestic violence nad sexual assault within the legal system. FN3 Additionally, I’ve spent most of my adult life working in higher education administration; my husband also works higher ed administration. We're both very involved in sexual assault response work. FN4
I have been on the community advocacy side, which gives primacy to victim autonomy and empowerment over community justice; I have been on the prosecutorial side, which tends to tip in favor of stopping future violence and prosecuting offenders even when that means going against victims’ wishes. FN5 So it’s sufficient to say that I understand the arguments on both sides, and I am hip deep in these issues on a daily basis.
With all that said, I’ll talk generally about my feelings with regard to campus alerts in acquaintance rape/sexual assault cases. The Sexist offers four reasons for why campus alerts are appropriate:
1. Students want information about what’s going on on-campus.While I agree with all of these points, campus alerts will not help redress these issues nearly as effectively as other available options. Additionally, they may actually hurt survivors substantially. FN6
2. Students are often undereducated on the problem of acquaintance rapes on campus.
3. Students are only prepared to protect themselves against stranger rapes.
4. Parents are perhaps even more hideously misinformed about these realities than students are.
It’s true that students want to know more about what’s going on within their campus communities. That’s always true, not just with campus communities, but everywhere. Wherever there are police cars and sirens, there will be lookieloos. Campus communities are even more inclined to this sort of behavior because, like small towns with low crime rates, any time the police show up on campus it is big news. While I think that Clery Act reporting appropriately holds campuses accountable for reporting crime statistics in a publicly accessible way, campus alert systems – the hot new thing in campus safety protocols, spreading like wildfire in a post-Virginia Tech campus security era – function very differently. FN7 Clery Act reporting is collected on an ongoing basis but published in a collected way. While logs have to be current—within 60 days— reporting is typically published quarterly or by semester. This distance allows survivors something that is critical in small campus communities: anonymity. Universally, survivors don’t report for a lot of reasons, but within campus communities I can tell you, both statistically and anecdotally, a huge factor that weighs on reporting is whether the survivor believes s/he will be able to keep the fact that they are survivors to themselves. Within campus communities, particularly smaller campuses (really anything under 10K), it is exceedingly easy for people to figure out who survivors are as stories spread around campus without there being an all-points bulletin that gives enough detail to ‘warn’ the student body. Additionally, the Family Educational Rights and Privacy Act (FERPA) requires that campus authorities keep details related to student conduct files confidential. This applies not only to the survivors, but also to alleged perpetrators.
Campus communities try very hard to increase reporting. We recognize that we are not only the arbiters of justice within our communities, but we are also the first responders and support systems for survivors. While we want to hold perpetrators responsible, and we desperately want to prevent assault in the first place, we also want to do everything we can to ensure that the bright, young people who come to our campuses will survive whatever trials they face during their time with us. We want them to thrive, and we want to be there for them. That means a lot of what we do is victim driven. While I cannot speak about any specific case in particular (see FERPA), I can tell you that when survivors do report, particularly in cases where the alleged perpetrator is an acquaintance or friend, the survivors are frequently adamant that they do not want those individuals, if found responsible, expelled or even suspended. While we, as institutions, have a responsibility to protect our students, at the same time, we try very hard to honor the wishes of survivors and have the process be one that helps them empower themselves by taking control of their lives after that control has been stripped away. Having an automatic campus alert system would take power away from victims, and open them up to public scrutiny. These are the last things that someone who has just survived an assault needs.
As for the education piece, this is something that every campus I’ve ever been on and every higher education administration professional I’ve ever spoken to about the topic struggles with. We try very hard to be effective. Yes, we could educate our students better. Yes, basically all the cultural training individuals get is almost exclusively limited to warning women about being attacked by a stranger (aka stranger rape), which accounts for an infinitesimally small amount of the sexual assaults that occur. Yes, if students are undereducated and ill-prepared to deal with the reality of assault, then their parents are even more so. Yes, colleges and universities need to address this educational black hole as part of the cultural learning that comes with a college degree. FN8 There are huge cultural barriers to these programs (like the fact that so many think that sexual assault isn’t really a problem and just something feminists like me have invented to make life harder for men) but that’s no excuse: we have to be creative, we have to be tenacious, and we have to be relentless in our efforts to find new and effective ways to educate around these issues. But scaring the bejesus out of people with random campus alerts isn’t going to do that. In fact, it’s more likely to desensitize people to the issue.
Further, part of the reason that the sexual predators Dr. David Lisak identifies so effectively (and terrifyingly) in his work are so successful at continuing to assault people and then convince said people to doubt themselves or be blamed by others is because they are basically systematically and sociopathically creating a public persona that leads them to be the last person anyone thinks of when they think “rapist.” FN9 FN10 They are charming. They are well-liked. They are thought of as successful with their target audience for sexual partners. Consequently, all the campus alerts in the world aren’t going to make potential victims more concerned about the people most likely to be targeting them. Further, it is incredibly likely that such alert systems would inform predators that their most recent victims have reported and warn them off potentially suspect behavior until the general sense of alarm blows over. So, short of naming alleged perpetrators in the alerts, you don’t actually accomplish anything and may actually aid predators in their efforts, and that ignores both the issue of FERPA restrictions on disclosure of the alleged perpetrator’s file before they’ve been found responsible as well as implications regarding the possibility that the individual won’t be found responsible at all (admittedly usually due to murky evidence issues but sometimes due to legitimate innocence) but nonetheless labels them permanently among their community as sexual predators. FN11
Lastly, any kind of responsible campus alert system would have to have to key off findings of responsibility rather than reporting. According to Dr. Lisak, roughly 1 in 15ish men may commit a rape in the course of their lives. Of those men who commit assault, about half will be the serial perpetrator. That serial perpetrator will account for 90% of the assaults that occur. While that is some scary shit, you also have to recognize that you don’t always know when the alleged perpetrator you are dealing with is in the half who had to much to drink, assaulted someone they knew and liked, and now will have to live with the consequences of that for the rest of their lives, or the other half, Mr. Serial Rapist. FN12 To meet the requirements that would allow a campus to supersede FERPA privacy issues, i.e. that a “timely warning” is issued when crimes occur on campus that pose an “on-going threat” to the community, you’d have to know that the student in front of you is the serial and he is going to do it again. Otherwise, you’ve violated FERPA and created a huge law suit type situation. Consequently, you’re talking about sending out alerts weeks or even months after the fact, because sometimes it takes months for survivors to come forward. This, again, won’t do anything to educate or warn students of an ongoing threat, but is likely to help the community identify a survivor who wants to remain anonymous.
If a campus is confronted with a situation where, in a short span of time, a number of survivors come forward and they tell a very specific story that demonstrates commonality of approach and execution wherein the survivors cannot readily identify their assailant (i.e. slipped drugs at a party), then yes, I think the campus community has a right to be informed. But that is a unique and specific circumstance, and not typical of the kind of acquaintance rapes that constitute the majority of campus assaults. Alert systems won’t help reduce that horrifying reality. Educating students and their parents about making healthy choices, exploring sex through open communication and consent, and practicing personal safety are the best ways to reduce sexual assault. Proving that we can keep student confidences, having clear and easily understandable reporting avenues, polices, and conduct processes, and demonstrating a willingness to work with survivors to help them in their recovery will increase survivor reporting. Those are the best ways to both protect and assist survivors, and at the same time, identify potential serial perpetrators within our campus communities.
FN1 For the purposes of this piece, I will refer to rape as merely a kind of sexual assault. I do this not to minimize rape, but to acknowledge that (a) rape is typically defined very narrowly in the law compared to the various ways someone can be violated sexually, and those definitions effect Clery Act reporting because they provide the definitions that campuses use to determine what they are required to report; (b) frequently sexual assault may not include vaginal penetration, as is popularly conceived, but is nonetheless violating, terrifying, emotionally traumatic, and equally impactful on survivors.
FN2 I was lucky to study under Doug Beloof, who literally co-wrote the only textbook on crime victims’ rights, Victims in Criminal Procedure, with Paul Cassell, and Meg Garvin, who is currently the Executive Director of the National Crime Victim Law Institute. I clerked for NCVLI and for the Crime Victims’ Services division of the Oregon Department of Justice. I took the Crime Victims’ Rights Litigation clinic, a lecture course on Victims in Criminal Procedure, and did my major research paper under Doug Beloof’s guidance. I also clerked for a year at the local DA’s office, spending nine months in the Domestic Violence unit, where I carried my own docket and worked closely with my victims.
FN3 Fourteen months for Volunteers of America: Home Free assisting domestic violence victims obtain protective orders; nine months for the local legal aid office assisting DV victims facing contested hearings who were fighting to keep their protective orders.
FN4 We are both members of our campus Sexual Assault Response Team (SART). I regularly assist with training new SART team members, emergency response and crisis management professionals, and students leaders on sexual assault response. We’ve both edited campus policies related to sexual assault and domestic violence, and we both have experience working directly with survivors through campus judicial processes and reporting to criminal law enforcement. I have worked at three schools: 1 private secular, 1 public, 1 private religious. My husband has worked at 2 private secular schools. Between us we have sixteenish years of professional experience. We’ve been through extensive training related to sexual assault adjudication, including training by Brett Sokolow. I’ve been through training with Dr. David Lisak. I’ve sat on the campus committee for the Oregon Attorney General's Sexual Assault Task Force and I’m a state certified sexual assault responder. I could go on, but I think I’ve made my point.
FN5 This happens much more frequently in domestic violence prosecution than in sexual assault prosecutions, though it does happen in SA cases as well. For example, there are a lot statutory rape cases that get tried against victim’s wishes. Whether or not that should happen is a whole other post.
FN6 From this point forward, I will be referring to those who survive sexual assaults as survivors, rather than victims. Within criminal law, the terminology refers to victims broadly as such in part because, frankly, not all of our victims survive. Within community advocacy, which is the approach most frequently taken by colleges and universities, survivor is the more appropriate terms and acknowledges the amazing strength that it takes to overcome sexual assault.
FN7 We could talk for days about the ways that Clery Act reporting can be manipulated in order to make campuses seem safer than they are. Personally, I find it loathsome that schools will engage in this sort of ‘hide the ball’ behavior, but I also blame the legislature for writing the law in such a way that makes it easy for schools to avoid reporting crimes that happen to students because they happen to occur, say, just across the street.
FN8 And trust me, these cultural experiences and life skills are a huge benefit of a higher education that frequently go unnoticed and unaccounted for when we talk about the benefits that are denied to those who never get the opportunity.
FN9 Here are pertinent details from Lisak’s work:
These Assailants are extremely adept at identifying “likely” victims, and testing prospective victims’ boundaries;More stats and information can be found here and here.
• plan and premeditate their attacks, using sophisticated strategies to groom their victims for attack, and to isolate them physically;
• use “instrumental” not gratuitous violence; they exhibit strong impulse control and use only as much violence as is needed to terrify and coerce their victims into submission;
• use psychological weapons – power, control, manipulation, and threats – backed up by physical force, and almost never resort to weapons such as knives or guns;
• use alcohol deliberately to render victims more vulnerable to attack, or completely unconscious.
In a study of 1,882 university men conducted in the Boston area, 120 rapists were identified. These 120 undetected rapists were responsible for 483 rapes. Of the 120 rapists, 44 had committed a single rape, while 76 (63% of them) were serial rapists who accounted for 439 of the 483 rapes. These 76 serial rapists had also committed more than 1,000 other crimes of violence, from nonpenetrating acts of sexual assault, to physical and sexual abuse of children, to battery of domestic partners. None of these undetected rapists had been prosecuted for these crimes.
FN10 Dr. Lisak has also done some wonderful work on the neurobiology of trauma, which really helped me understand my own experiences of PTSD much better. I can't say enough good things about the work he's contributed.
FN11 Lewis & Clark made the national news a little while ago w/r/t a campus sexual assault case. I can’t say anything specific about it, but I can say first hand that publicly naming an alleged perpetrator certainly did not have the kind of impact Amanda Hess is hoping for within our campus community.
FN12 Editors Note: I have seen Dr. Lisak present work indicating this number is as low as 1 in 22 men who commit rape being serials, but since I cannot find the direct link to this presentation online, I have revised my numbers to reflect the statistics in the study I've cited here for clarity. Thanks for Amanda Hess for pointing is out.