An Open Letter To University Presidents About Campus Sexual Assault

Dear Presidents;

On March 7 2014, you were granted unprecedented authority to engage in gender discrimination and explicit subjugation of women on campus. Bestowed upon you by Congress, the Campus SaVE Act (SaVE) provides that the redress of civil rights violence on the basis of sex should occur under less protective standards compared to civil rights violence on the basis of all other protected class categories such as race, national origin and religion.

Among other things, SaVE requires you to apply state criminal law definitions to campus-based determinations of gender-based violence instead of more generous federal definitions of civil rights harms. SaVE also allows you to apply a more onerous burden of proof in matters of sexual assault, dating violence, and stalking compared to other types of civil rights violations. SaVE even allows you to delay reaching a “final determination” on a victim’s complaint until the literal date of her graduation, if not later. This means that you can allow an offender to remain on campus even after being found responsible—while his appeals are pending—and literally “run out the clock” until the victim leaves campus. If the initial ruling is subsequently overturned, the victim will have no meaningful remedy because she cannot achieve equality in education after graduation.

A federal lawsuit was recently filed against the Offices for Civil Rights at the Departments of Education and Health and Human Services in Washington, DC in an attempt to enjoin the enforcement of SaVE’s provisions that are unfair to women. Please take the time to read the complaints so you can see where the problems lie.

Please also know that we have sympathy for your plight as you undertake to deal with SaVE, especially in connection with the particularly prolific and seemingly intractable problem of sexual assault.

We understand the difficulties you face. When a student reports a rape and an accused offender denies it, you have to determine not only whom to believe, but also, what to do about it. To be sure, not all students are equally credible, not all sexual assaults are alike, and not all offenders deserve the same punishment. But research shows that a small percentage of offenders commit 90% of offenses and most perpetrators are repeat offenders, which means taking swift and serious action in response to first-time offenders will substantially reduce incidence rates.

We understand that holding offenders accountable has financial ramifications for your institution because an expelled student doesn’t pay tuition, and he could file a lawsuit for wrongful expulsion. From a risk management perspective, not holding offenders accountable is preferable because a mistreated victim can’t sue as easily as an expelled offender can, and by routinely mistreating victims, reporting rates go down. With fewer reports, public scandals and Clery Act statistics are minimized.

But unjustly refusing to hold offenders accountable may be costly in ways you haven’t fully considered because victims are becoming more aware of their rights and, like the University of Virginia victim who filed suit against the Campus SaVE Act, are increasingly willing to file civil lawsuits against schools even if the case will not result in a substantial damages award.

More importantly, the systematic unfair treatment of an entire class of people eats away at a school’s integrity and irreparably weakens its core. Students and ideas nurtured in such an environment enter the real world scarred, like leaves that emerge shriveled in springtime from a rotting tree.

Not surprisingly, a recent study found that women graduate from college with less confidence than when they entered. One explanation can be tied to shocking statistics that show 1 in 4 to 1 in 5 students is sexually assaulted during college. With approximately 900,000 women graduating each year, conservative estimates suggest that at least 60,000 women are sexually assaulted on campus every year. In almost all cases, the institutional response is inadequate.

When a student seeks help, barely able to talk because her body is sore from her mouth to her knees, and she cannot relate what happened because she was drugged or she simply cannot bring herself to face the horrifying reality of having been violated by a trusted fellow student, it’s common for school officials to advise her to “move on” and focus on her studies. Most victims heed this advice because they want desperately to believe that moving on will make everything okay, but the reality is much more grim. Simply moving on fixes nothing, and usually makes things worse.

In fact, research shows that unresolved trauma has long-term consequences that recur over the lifespan, and inadequate responses from school officials who discredit the victim or undervalue her harm, cause additional harm, usually in the form of “institutional betrayal trauma,” because victims and their families cannot comprehend why officials tacitly endorse through inaction the sexual assault of any human being.

A school’s values do not exist in Latin words on shiny crests, they live in the actions of its representatives, including those who deal with victims of campus sexual assault. Some university officials struggle to understand why sexual assaults on campus are so destructive to the fabric of an academic community, and so ruinous to the human condition. After all, it’s just sex, right? How can a singular act be at once devastating and yet so profoundly pleasurable? This question is often at the center of campus disputes and is pondered by observers who assess conflicting information through the biased lenses of their own sexual life experiences. Such biases produce unfair results in both directions with males (usually) seeing aspects of themselves in the role of the offender, and females (usually) identifying more with the victim.

That two people could feel exceedingly different emotions about the same event makes simple solutions seem elusive. But if the frame through which the problem is evaluated is oriented around ideas such as personal autonomy and bodily integrity, rather than sex, resolving disputes is simple. Simply put, the old adage “my right to swing my fist ends before it hits you in the nose” applies to penises and vaginas, too. Your job is to guide the millions of young people in your care toward a deep understanding of why individual freedom and self-determination—and not sex—are the driving forces behind your school’s policies regarding violence against women on campus.

While effective solutions won’t come from higher education alone, leadership that begins in academia has the potential to change behavior far beyond the campus environs, starting with aggressive classroom attention to autonomy theory, alongside hands-on application of disciplinary rules that promote the value of each student’s exclusive right to decide the circumstances under which another person has intimate access to their body.

Training and education programs are fine, but you cannot teach people not to rape any more than you can teach people not to be racist. Meaningful prevention comes from changing the way students think about women and sex, and giving them a compelling reason to think differently by, for example, describing the ways sexual assault can be compared to slavery. No, they aren’t exactly the same social harms, but freedom and authority over the self are compromised in both contexts. And just as you teach young people to reject the argument that some African American slaves “liked” working in the fields despite that they were not free to choose otherwise, you should be teaching young people to reject claims that there is freedom in choosing to be penetrated violently while barely conscious.

There isn’t.

The question for you is whether your university wants to promote or deter such behavior. If your school’s values include respect for equality, autonomy, and human dignity, the answer is obvious.

Your challenge then is to inspire young people to live those values on your campus no matter how people behave in the real world. Indeed, federal civil rights laws such as Title IX, Title VI and Title IV were made applicable to schools, and not larger society, precisely because Congress wanted the educational environment to be a better place for young people. Yet a woman is more likely to be sexually assaulted in college than in the “real world” or even in the hyper-masculine environment of the military. If civil rights laws are supposed to provide greater safety and equality for women in college than in the real world, it should matter to you that the reverse is happening under your care.

To be sure, sexual violence emanates not only from a failure of university leadership, but also from a long history of gender inequality in society. Laws related to civil rights in education were not expected to change things overnight, but it has been fifty years since the enactment of Title IV, and more than forty years since Title IX became law.

Women have waited long enough.

Universities have long enjoyed a place of privilege in society, though some believe it is an undeserved privilege and that higher education is like any other industry except for the benevolent gloss and tax-exempt status. But we still believe in you. We still see higher education as a source of hope and we feel confident that even as most industries strive only to produce better profits, you sincerely endeavor to produce better people.

Better people do not graduate from universities where sexual assault occurs with impunity. Better people come from schools where equality for women is as important as equality for gays, Irish, Muslims, African Americans, students with disabilities—all students. The very idea that targeted violence against women should be subjected to worse legal standards under SaVE compared to violence against all other students on campus is anathema to the nature of what it means to live and learn in an environment where all students are equal.

SaVE allows and in some cases compels you to treat women as second-class students. We implore you to reject such a regime and openly refuse to comply. Your resistance to compliance will send a strong message that the unfair treatment of women on your campus will not be tolerated, even with congressional permission.

You now stand between your female students and their rightful equal place in the world. You can participate in women’s subjugation or refuse to incentivize violence against them. If Congress enacted a law allowing you to treat black students unfairly, you would proudly refuse, and we would stand there with you. The same feeling of repugnancy should inspire you on behalf of women. Your moral fortitude may well become a selling point for your school precisely because you dared to speak up.

We are not asking you to be either polite or revolutionary. Women don’t need solicitous protection and gender equality is not a revolutionary idea. We’re simply asking that you refuse to enforce provisions in the Campus SaVE Act that allow or require you to subject the redress of civil rights violence against women to weaker legal standards compared to the redress of other civil rights violence on campus. Please embrace this unique opportunity to hold women high and equal no matter how hard power brokers in DC try to push them down.

Sincerely,

Women

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Wendy Murphy
Wendy is an adjunct professor at New England Law|Boston where she has taught a seminar on sexual violence for more than ten years. She developed and directs two projects in conjunction with the school’s Center for Law and Social Responsibility. The “Sexual Violence Legal News” project is an alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The “Judicial Language Project” uses socio-linguistic research to critique the language used in law and society to describe violence against women and children. She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught “Reproductive Rights and Technologies” at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has also taught courses in reproductive technologies and constitutional criminal procedure. She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992. Wendy wrote the first-ever law review article connecting sexual assault to Title IX in 2006 and filed the first-ever OCR policy complaint against a university in 2002.

1 Comment

  • Sonia Pressman Fuentes April 16, 2014 (8:12 am)

    Thank you for your efforts to protect women from sexual violence on campus, Professor Murphy. I have shared your letter with my feminist email list.

    Sonia Pressman Fuentes, cofounder of NOW, first woman attorney in the Office of the General Counsel at the EEOC

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