I didn’t support the campaign to have fraternities restricted or banned at Swarthmore, largely for reasons I articulated earlier this academic year.
I do support the students who’ve filed a Clery Act and Title IX complaint against Swarthmore, and similar groups of students at other campuses.
I might disappoint those students by qualifying that support in the following manner: that I don’t think they yet have a completely clear view of the alternative processes or outcomes that they’d prefer. Once you start a conversation about the difficulties involved in building a better system, you might have some appreciation for why most administrations in higher education have settled for so long for the complex, contradictory and unsatisfying systems of reporting, counseling, and judiciary review that have been built up over the last three decades.
Let’s start with the support first, though. The first and foremost reason that I think this development is a very good thing for Swarthmore and institutions like it is that the filing plus an independent review by consultants will at last create a documented, independent body of testimony and evidence about student experiences and administrative procedures that everyone can use as the standard reference point for going forward.
Ever since I’ve arrived at the college in the mid-1990s, I’ve known students that have alleged that the college handled reports of abuse, assault, harassment or rape inadequately. I’ve had a pretty wide range of committee assignments since I’ve been at Swarthmore but one area that I’ve had no involvement with is judiciary procedures. The one time I served on the Dean’s Advisory Committee almost two decades ago, we mostly discussed alcohol policy, though with little address to the role of alcohol in assault or rape allegations. Without personal experience, I’ve had nothing else to use to evaluate those student allegations except trust in the students I know and trust in my colleagues in the administration, which have pulled in opposite directions. I do know from experience that students sometimes are profoundly wrong or exaggerated in what they say about other aspects of internal process or decision-making at the college. At the same time, I’ve known that sometimes faculty and administration don’t accurately hear or mentally transcribe what they say to students. So without anything direct to go on, it’s been hard to know what to say. Was this a common problem? A sporadic one? What kind of problem was it: a problem with specific procedures, with particular staff members, with a generalized culture, with a specific kind of incident, with the entire society around us? Most of the students I’ve heard from are students I trust very deeply, but they’ve almost always been telling me about what friends or friends of friends have said, not speaking about their own direct experiences. The constant thrumming of discontent has always worried me.
One reason that those stories were vague or indirect was the completely legitimate reason that victims often don’t want to go public, don’t want to have to endure skepticism and hostility, don’t want to have to repeatedly tell a story of trauma, don’t want to be responsible for educating everyone else about victimization.
Another and more important reason, it turns out, is that we have told students that our judiciary procedures require absolute confidentiality from everyone involved in a hearing, so that the students who took the step to most clearly document cases of harassment, assault or rape believed they were required to keep that documentation secret, whether or not they were satisfied with the outcomes of the process. (The student publication the Daily Gazette has published a very good series of investigative reports on this issue that helped to bring this point forward.) So our procedures, intentionally or not, have helped to maintain an environment where it is impossible for the community to have documented knowledge or awareness of the incidence, character or resolution of assault and rape and yet equally where survivors and victims can do little but informally or privately testify about their experiences. Small wonder then that there has been a recurrent, corrosive murmur about the untrustworthiness of institutional process: there has been no way for that murmur to be anything more.
Which is why clear, documented, transparent scrutiny from several different bodies is a good and necessary outcome. It’s the only way to move forward.
Whatever the investigations find, however, there are some persistent contradictions in the advocacy of the students filing the complaints that will prove hard to resolve.
Some changes will be easy to make, and may already have been made. Particularly on reading the investigations in the Daily Gazette, I don’t have any hesitation about saying the following:
1) That a student reporting harassment, assault or rape should never, ever be asked if he or she was drunk or in any way culpable. I don’t even think it’s relevant to ask whether the complainant clearly said no or made an objection to harassing behavior. As many critics have pointed out for decades, that puts the impetus on the person being approached to say or do something, as if the person making an approach can safely assume until something is said that it’s ok to make sexual advances or remarks. If someone’s reporting, the baseline assumption should be that there’s something to report and that the person reporting is a victim of another person’s actions.
2) That sympathy for and counseling to victims be absolutely hard-wired into the reporting process. It’s my impression that the college has moved pretty forcefully in this direction already.
3) That once a report is made, there’s a public record of the report, without names, creating a verified, public database about the incidence of such reports and their resolution. I think from 2011 onward, Swarthmore and most other colleges have fixed that part of the process, in response to federal requirements.
4) That some accommodations of victims should be made much more expeditiously than we have done. For example, moving accuser or accused to other dorms should happen without a lot of hassle or delay. To be honest, I think that should even happen more quickly in cases where there are strong personality conflicts–most residential colleges have tended to treat most friction in living spaces as a “learning experience” that relates back to diversity.
5) That we can do way better than force victims to sit down with the accused in a small room and have to testify to peers, faculty and administrators who may or may not have training or experience relevant to rape and assault cases, in an environment that is at best indifferent to the mental well-being of the victim.
6) That we shouldn’t ever restrain victims from speaking about their experiences. Confidentiality is a powerful but exceedingly dangerous sociopolitical technology that should be used only in very specific and limited contexts. Academic institutions are prone to the massive overuse of confidentiality across a very broad range of practices and procedures, and this is one of them.
However, rethinking judiciary procedures in specific is likely to be a bigger problem.
Here’s the chief contradiction I see among the advocate groups who have been pushing for changes at Swarthmore and other campuses. Some of the students involved, including some at Swarthmore, argue that they would like to see much more expeditious actions taken against reported rapists or assailants, most typically quick movement on expelling offenders and creating some form of permanent record or notation of the reasons for their expulsion. (See for example Tucker Reed’s account of her experiences at USC.)
At the same time, some advocates respond that they would prefer for action to be taken by administrative processes within their institutions rather than by the external legal system, for a number of reasons. First that the legal system is by any standard even slower at producing results; second that it is often far more violating or traumatic for victims than the worst collegiate procedure; and most interestingly third that many of the victims report some degree of compassion or concern for the future of their attackers, preferring that they simply be removed from the community rather than suffer criminal penalties. (At the same time, most victims quite legitimately reject outright that they themselves be compelled via a judiciary process to participate in the rehabilitation or education of their attackers.)
All of these points make sense but they pull in opposite directions. For one, the idea that we should be sufficiently sympathetic to rapists or assailants within a community to not seek criminal penalties, just removal, is in tension with the frequently-repeated dictum that rape is rape, that we shouldn’t see rape that involves two drunken acquaintances who’ve had consenting encounters in the past as any different or lesser than “stranger rape” that leaves the victim severely injured. Nor is it fair to leave the determination of whether to treat rape as a criminal violation reported to the police as a burden on the victim. But requiring or mandating a criminal report in all instances creates problems: by their own account, many victims might be less likely to make a report if they knew that was the outcome, both out of anxiety about the process (knowing, among other things, what an adversarial system will do to distort or manipulate the victim’s experiences) and even out of reluctance to visit criminal penalties on their attackers.
If that leaves colleges like Swarthmore with a need to have a better or different judicial process, what should that look like? I’ve always been a bit unhappy with the pseudo-judicial systems that many universities maintain: they’re demonstrably prone to manipulation in other ways and on other issues besides rape and assault.
If the desired outcome is that an attacker be expelled quickly, and that there be a record of the reason for the expulsion, that’s going to create some serious burdens on the institution. First because that’s a fairly serious penalty that requires something like if not identical to the presumption of the American judicial system: a presumption of innocence until due process is observed. Let’s say you expel a student after three years and put on their transcript, “Expelled for sexual assault”. The expelled student can rightfully say that you have deprived them of the benefits of three years of tuition and the expected lifetime benefits of completing a Swarthmore education. Considering that in recent years, students have sued universities even over what seem like open-and-shut issues like low grades in a course, it’s not unreasonable to expect that more frequent expulsions with clear transcription of the cause will lead to litigation, with potentially large damages being sought.
Meaning that the standards for a finding of assault in an internal procedure would have to be high enough to withstand scrutiny in a civil proceeding and also that they probably ought to be in that being expelled and having a transcript with a note as to cause is a serious penalty if not as serious as a criminal finding of rape or assault might be. If so, that’s likely to run counter to what the critics of current policies are seeking, in several respects. The counseling of victims would have to be utterly firewalled away from a judicial procedure (the degree to which that’s presently the case is the source of a lot of frustration, in that we’ve formerly had deans serving both as the advisors for a judicial procedure and as counselors to victims) and the judicial procedure would have to operate with something like the presumption of innocence for the accused if not with an openly adversarial approach to evidence and questioning, which walks us right back into the problem of seeming unsympathetic or skeptical towards victims. In a small school, it’s going to be very difficult to have one institutional structure that puts no burden on victims, openly acts as their advocates and counselors, promises them justice, redress and healing and then have another institutional structure that can’t promise anything of the sort and then have those two structures interact to produce a coherent and decisive outcome very quickly. It’s going to be equally hard not to have that kind of two-sided approach, however. The students seeking change shouldn’t expect that it’s going to be easy or even possible to create an internal procedure that does all or even much of what they advocate.
They should also consider that building such a system might have many unexpected or unanticipated consequences. For example, if the process has to withstand legal scrutiny, it might be hard to keep other kinds of criminal actions (involvement in drugs, underage drinking, non-sexual violence, even intellectual property violations) wholly out of the loop of that system, to make other kinds of infractions subject to more informal, confidential mediation. We might almost have to have three (or more) separate systems or to define sexual assault, rape and harassment as offenses which are so completely different in impact and gravity that nothing else requires the same kind of process or procedure. In the case of the latter approach, it probably won’t be long before someone argues that some other class of offense or harm is equally serious and requires the same kind of handling.
I suppose as something of an afterword, I’d also suggest that the students bringing the complaint should not be quite so cynical about the possible outcome of an independent review. I support the filing of the Clery Act complaint because I think the more investigative processes the better and because it’s the only way to create more trust in the long-term in the community. But it’s important not to treat investigations of this kind as a zero-sum contest that can either be won or lost, and to therefore “work the ref” by creating a pre-emptive narrative about the intentional insincerity of your opponent and therefore the pervasive untrustworthiness of everything “they” are doing. I think a probing investigation–whether by consultants or the federal government–is likely to find that the mistakes and problems of institutional process over the last twenty years are a product of messy histories (ranging from the crazy-quilt contradictions of in loco parentis at colleges to an ever-shifting legal environment). If so, there is no “they” who has acted with devious intention, nor any “they” who are out to hurt the institution. When I look at this filing, I don’t see sides, I see a lot of people who want the best for Swarthmore and higher education and who are doing the right thing as much as they can in the way they see best, and in the case of the students, doing it with great courage and determination. This isn’t zero-sum: it’s the rare kind of dispute where there are ways for everyone to come out a winner, if only everyone will leave enough space for that to happen and have enough generosity to agree that once we get past the obvious changes, there will be difficult puzzles that can’t be so easily solved.
Have you spoken to the women who submitted the complaints? From conversations I’ve had with them, they have considered almost all the arguments and criticisms you present. I’m sure they’d speak to that well, as they’ve been victimized and disempowered by this system that, I assume, you may not have.
Thanks for sharing your thoughts and opinions on this case, I always learn something from the way you approach a problem.
But I do want to note that you’ve consistently used the word “victim,” and without knowing anything about the reasons behind your word choice here, I’d like to highlight that many people try to stay away from referring to people who experience sexual assault as victims and reinforcing the disempowerment and removal of agency they experience.
I know that they have considered them, but to have considered them is not the same thing as resolving them. I raise them because I honestly don’t see straightforward resolutions of these questions on the other side of the inquiries. I also hope that the standard for participating in the creation of a better system or maintaining its operations is not going to be “have been victimized and disempowered”: that creates a very powerful insight about what’s been wrong to date but the system will have to belong to and be sustainable by the community as a whole or it won’t be functional.
Katie:
That’s a good point. I suppose I felt in the context of this essay that I didn’t want there to be any tension about the presumption of truth about the testimony of people who step forward to make a complaint. Is there a single word you think would more artfully keep that clear in the difficult ground of this essay without reproducing the problems of “victim”?
“I might disappoint those students by qualifying that support in the following manner: that I don’t think they yet have a completely clear view of the alternative processes or outcomes that they’d prefer. Once you start a conversation about the difficulties involved in building a better system, you might have some appreciation for why most administrations in higher education have settled for so long for the complex, contradictory and unsatisfying systems of reporting, counseling, and judiciary review that have been built up over the last three decades.”
Did you ever think to ask these complainants what they were thinking? Has it occurred to you that they’ve been working with a team of lawyers and consultants? Why do you assume that they haven’t considered the possibilities? Did you ever talk to them?
I’m very disturbed by your presumptions about student activism. Instead of assuming what students are or are not thinking, why not ask? They’ve made themselves public for a reason…
Prof. Burke,
The widely accepted term, which I’m surprised you don’t know, is survivor, not victim.
Ok. Survivor is not without its own issues, but I’m content to use that and did so in fact in this entry at one point. Thank you.
Seriously:
I’d really love it if this thread didn’t look like the Daily Gazette discussions threads. So move the conversation ahead: what are the possibilities? What are the answers? Lay them out. Move it ahead.
Some great points. I thought the College Judiciary Committee process was confidential, too, until a few months into my freshman year when I heard people gossiping about one in Kohlberg over coffee. Later, when a friend went through the process and was the subject of a great deal of gossip, I knew that if anything every happened to me I would only comfortable bringing it to the CJC unless I were comfortable with the possibility (or probability) that details would get out and spread like a game of Telephone. For a case involving sexual violence, I knew I would never bring it before the CJC.
The Clery complaints are disturbing, because I can’t think of any valid excuse for someone legally mandated to file an incident report to repeatedly not report, particularly when they are informed of incidents of sexual violence. When a student tells a mandated reporter about an incident of sexual violence, reporting it to comply with the Clery Act does not have to include the the person’s name. Reporting it does not require that the student file criminal charges or bring the case to the CJC. Not filing a report isn’t respecting the student’s right to anonymity. It’s not compassionate. Whether they were too busy and forgot or were systematically underreporting incidents of sexual violence to protect their employer’s reputation as an exceptionally safe, suburban campus, failure to report is wrong. It’s illegal. The investigations can help everyone understand what was going on and (I hope) why. Then, with accurate data and better procedures in place that everyone commits to following, Swarthmore will be a better place. Swarthmore holds itself to high standards, and addressing sexual violence should be part of that. Underreporting statistics so we can merrily going about our lives as though it’s only a few isolated incidents a year is inexcusable.
Okay:
“Let’s start with the support first, though. The first and foremost reason that I think this development is a very good thing for Swarthmore and institutions like it is that the filing plus an independent review by consultants will at last create a documented, independent body of testimony and evidence about student experiences and administrative procedures that everyone can use as the standard reference point for going forward.”
Did anyone ever say that an independent review in addition to the US Dept of Ed investigation is bad? Sounds like a good idea to me given that the DOE can be very slow as well.
“Most of the students I’ve heard from are students I trust very deeply, but they’ve almost always been telling me about what friends or friends of friends have said, not speaking about their own direct experiences.”
Fortunately there are now students speaking about their firsthand accounts.
“Small wonder then that there has been a recurrent, corrosive murmur about the untrustworthiness of institutional process: there has been no way for that murmur to be anything more.”
Agreed.
“At the same time, some advocates respond that they would prefer for action to be taken by administrative processes within their institutions rather than by the external legal system, for a number of reasons.”
Which student advocate said that ever? The two work in conjunction with one another.
“If the desired outcome is that an attacker be expelled quickly, and that there be a record of the reason for the expulsion, that’s going to create some serious burdens on the institution. First because that’s a fairly serious penalty that requires something like if not identical to the presumption of the American judicial system: a presumption of innocence until due process is observed.”
The fact of the matter is that this is how the law works. The “Dear Colleague Letter” forces colleges to use the preponderance of evidence standard when adjudicating on sexual assault cases. That’s explicitly stated in Title IX.
“Meaning that the standards for a finding of assault in an internal procedure would have to be high enough to withstand scrutiny in a civil proceeding and also that they probably ought to be in that being expelled and having a transcript with a note as to cause is a serious penalty if not as serious as a criminal finding of rape or assault might be.”
As I mentioned above, it does not have to withstand the scrutiny of a civil proceeding. Civil proceedings require evidence beyond a reasonable doubt. Colleges only need to maintain the preponderance of evidence standard. As for your second line about expulsion being worse than a criminal finding, what? Sexual assault is a felony and you become a registered sex offender. You could get a life sentence for that. If you’re expelled from college, you can still get jobs without having to report that. You don’t carry a criminal record. They are NOT the same thing.
“The students seeking change shouldn’t expect that it’s going to be easy or even possible to create an internal procedure that does all or even much of what they advocate.”
Here are some possible solutions to addressing the issues you’ve brought up that student advocates have thought about. At colleges like University of New Hampshire, the school provides legal counsel to the accused and the accuser. These advisers are not administrators. This takes away the debacle of administrators having to protect all of their students at once. All students are entitled to advocates who are independent of the administration. And again, the preponderance of evidence standard also addresses a lot of the issues you’ve posed.
“They should also consider that building such a system might have many unexpected or unanticipated consequences.”
It’s perfectly legitimate that I feel irritated that you make statements like this without actually approaching the students in question.
“For example, if the process has to withstand legal scrutiny, it might be hard to keep other kinds of criminal actions (involvement in drugs, underage drinking, non-sexual violence, even intellectual property violations) wholly out of the loop of that system, to make other kinds of infractions subject to more informal, confidential mediation.”
Could you explain this a little more. I’m not totally sure I understand what you’re trying to say here.
“We might almost have to have three (or more) separate systems or to define sexual assault, rape and harassment as offenses which are so completely different in impact and gravity that nothing else requires the same kind of process or procedure.”
Title IX treats sexual misconduct differently than other offenses. I guess I’m just not sure I see what the issue is with this here. If the law begins classifying other crimes as equally serious, then that seems like an appropriate time for the college to begin treating the crime in the category of sexual assault, harassment, etc.
“I support the filing of the Clery Act complaint because I think the more investigative processes the better and because it’s the only way to create more trust in the long-term in the community.”
I think the student activists here are in agreement. I’m imagining some of the cynicism has to do with the decades of inaction by the administration. But I’m pretty sure nobody ever suggested that the college scrap the independent review.
“When I look at this filing, I don’t see sides, I see a lot of people who want the best for Swarthmore and higher education and who are doing the right thing as much as they can in the way they see best, and in the case of the students, doing it with great courage and determination.”
Absolutely agree.
“This isn’t zero-sum: it’s the rare kind of dispute where there are ways for everyone to come out a winner, if only everyone will leave enough space for that to happen and have enough generosity to agree that once we get past the obvious changes, there will be difficult puzzles that can’t be so easily solved.”
I agree with you in some ways, but we have to remember that students are still being hurt right now, like today, by these bad policies. We need to take the time to sort things out, but we also need to address the emergencies at hand.
Civil proceedings do not require evidence beyond a reasonable doubt. Criminal proceedings do. This is fairly crucial to my thinking that there is a complicated problem ahead. Meaning, you can satisfy the “Dear Colleague” letter and Title IX and still be liable to a civil complaint from an expelled student. E.g., the standard of proof for an expulsion has to stand up to whatever complaint an expelled student might (and almost certainly will) bring against the college, particularly if the transcript is explicitly marked as an expulsion for cause. In that case, you might say, “Well, you can still get a job”, but you are not really accounting for what an employer seeking a college degree might make of a provided transcript that says, “Expelled for sexual assault”. You can say, “You can transfer to another college”, but what would you think if Swarthmore admitted a transfer student with “Expelled for sexual assault” on their transcript? That’s about what other institutions will think. So that’s an action that doesn’t carry the actual criminal burden of a conviction but does carry a very substantial and somewhat similar cost to the student in question. Meaning whether you and I agree that it’s fair to expel and mark such a student, they are very likely to sue if so marked, and if so, the college’s case had better stand up in court. And it has to stand up to a standard that is closer to “preponderance of evidence” than “beyond a reasonable doubt” because that will be a civil complaint, not a criminal one. Which, again, is a crucial point that you don’t seem to grasp in your response. Meaning that whatever procedure we have, it’s going to have to be good enough to meet that challenge–and that will certainly take something like what you describe UNH as having.
If it meets the preponderance of evidence standard, then we’re in good shape, right? That’s what I’m getting out of your comment so I’m confused why it’s a problem. We meet that standard at the college and we’re abiding by the law. Unless I’m misunderstanding something.
And being expelled from college sucks. Not being able to get a college diploma sucks. But it’s not a felony. It’s not becoming a registered sex offender. It’s not being locked up.
And you’re right that civil proceedings require a preponderance of evidence not evidence beyond a reasonable doubt. I was thinking criminal. But the fact still holds true that if the college makes a decision on that standard of proof then it is making a fair and legal decision.
a) If you will please read the original entry, I said quite clearly (in the passage you quote) that a criminal penalty is worse than being expelled. Please do not shoot the messenger. Ok?
b) Please understand that meeting the preponderance of evidence standard to the satisfaction of a current CJC or any configuration of personnel and students that the college now can bring into such a procedure and meeting it successfully in a court of law with adversarial procedures will be very very different things. You are choosing one legal standard (“Dear Colleague” and Title IX) and not recognizing that there are others we’ll have to endure which are not the same, which is why being a lawyer is still a lucrative line of professional work. This is my central point in the second half of this entry: that if we want to make a process which presumptively trust and supports survivors, doesn’t subject them to skepticism or disengaged neutrality, and so on, we will make a process which cannot create a body of “preponderance of evidence” which will stand up to hostile probing by an attorney representing an expelled student. We either have to split the process (meaning at some point a survivor will face a process that at least somewhat resembles civil litigation, and splitting will introduce delays and tensions) or try to do it all in one process, with all the problems of the current approach, perhaps softened. If we accept that the preponderance of evidence rests with reporting survivors intrinsically, we’d be just and fair and totally accurate to what is known about rape, assault and harassment, but we’d also find ourselves incapable of carrying that standard forward into the external court system, where it is largely unrecognized or unacknowledged. We can make that choice, but let’s know what we’re getting ourselves into before we do it. At present, you’re denying that there is even a tension or issue, which is somewhat at odds with the “This is all totally figured out and we have lawyers, so what’s the problem?”
“If we accept that the preponderance of evidence rests with reporting survivors intrinsically, we’d be just and fair and totally accurate to what is known about rape, assault and harassment, but we’d also find ourselves incapable of carrying that standard forward into the external court system, where it is largely unrecognized or unacknowledged.”
I don’t understand this sentence. Could you please elaborate.
“We can make that choice, but let’s know what we’re getting ourselves into before we do it. At present, you’re denying that there is even a tension or issue, which is somewhat at odds with the “This is all totally figured out and we have lawyers, so what’s the problem?””
The condescension here is unreal. Nobody ever said it was all 100% figured out. I said that these issues have been considered. There’s a team of lawyers and consultants working with these students. Yes, it is important to figure out how to make this process a safe one for survivors. But I suppose I’m not seeing how requiring a preponderance of evidence makes the process inherently unsupportive for survivors.
“If you will please read the original entry, I said quite clearly (in the passage you quote) that a criminal penalty is worse than being expelled. Please do not shoot the messenger. Ok?”
I read the original entry. See below:
“Meaning that the standards for a finding of assault in an internal procedure would have to be high enough to withstand scrutiny in a civil proceeding and also that they probably ought to be in that being expelled and having a transcript with a note as to cause is a serious penalty if not as serious as a criminal finding of rape or assault might be.”
You said it’s as serious if not worse. Unless there’s something I’m missing here, you’re calling expulsion possibly almost or as serious as becoming a felon or registered sex offender when in fact they are not.
I guess something I’m wrestling with throughout this blog post (and the comments) is that there seems to be an intense focus on the risk of adjudicating because the assailant could sue. But let’s also remember that the survivors have many grounds on which to sue if the college does not take appropriate action. It is a definite balancing act, but it seems historically at Swarthmore to favor the assailant rather than the survivor. I think it’s always important to consider legal ramifications, but the those ramifications do not fall exclusively to the side of the assailant.
The college needs to comply with federal law. Period. This is a cut and dry issue.
Thank you for a nuanced exploration of this issue. To me the most important point you make is that there is no “they” – or at least my own experience tells me that what will probably be the outcome is institutional improvements that help strike a better balance between each party’s rights to privacy, having their case heard, etc, and of course the survivor’s emotional safety. I hope those current students following this discussion will appreciate the analysis you have offered about the multiple legal demands the college faces.
@Freshman, indeed, but the issues being raised here go far beyond meeting the letter of the Clery reporting requirement. And there are multiple ways that reporting and action following that reporting might be implemented, with varying implications for those involved. Framing it as a “cut and dry” legal issue seems unlikely to move the community dialogue in a productive direction.
To be fair the title is literally called “On the Clery Act Complaint.”
Seriously:
Swarthmore’s internal proceeding has no res judicata effect on subsequent civil litigation.
To call this a cut and dry issue is … problematic. Swarthmore, hopefully, aspires to do what is best for its students, not solely what is mandated by federal law. Under federal law, Swarthmore could (I think) pass all rape complaints on to local/state/federal authorities and wash its hands of the whole matter, which it clearly chooses not to do.
“Seriously”: It seems to me like your really missing Tim’s point that it is very very difficult to create a system which is (a) sympathetic & deferential to the experiences of survivors and (b) also creates outcomes which could withstand hostile external examination, particularly given that our courts aren’t known for being particularly deferential to survivors.
Maybe there is a solution to this tension. I don’t think I’ve seen one articulated in anything I’ve read. If there is a solution, please describe it to us … we’d genuinely like to know. Otherwise, I think it is time to start actively engaging each other in trying to figure out what such a system might look like.
I’d be interested in what experts say about what it would take for a process/outcome to withstand civil challenge. There are hard questions about what the ideal process would be absent any world external to Swarthmore, but this question should be easier in that presumably there are people who can just tell us the answer (with appropriate uncertainties attached).
” is a serious penalty if not as serious as a criminal finding of rape or assault might be.”
IS a serious penalty = yes, being expelled with a mark on your transcript about the cause is a penalty and it has serious implications for your future.
IF NOT AS SERIOUS = it would be more serious to be found criminally guilty of rape or assault.
============
Hope, I think you’re quite right that these concerns apply in more than one direction. In evaluating the current dysfunctional system, thinking about liability ought to cut both ways.
“Swarthmore, hopefully, aspires to do what is best for its students, not solely what is mandated by federal law. Under federal law, Swarthmore could (I think) pass all rape complaints on to local/state/federal authorities and wash its hands of the whole matter, which it clearly chooses not to do.”
This is a little beside the point but that’s actually not true. The US Department of Education says “A criminal investigation into allegations of sexual harassment or sexual violence does not relive the school of its duty under Title IX to resolve complaints promptly and equitably.”
Totally possible that I’m misinterpreting this, but I think it’s saying that all colleges and universities do have to use their own processes and cannot simply wash their hands of the matter by turning the issue over to the authorities.
Prof. Burke makes a good point that the decisions of the college ought to withhold to external standards to prevent the assailant from suing. But, of course, a reasonable legal standard (I’m not terribly familiar with the differences between them) needs to be applied in a CJC case not just to prevent being sued, but so that both sides have a fair trial. I’m aware that at the moment, these trials are systematically biased towards the perpetrator – but that doesn’t mean we should forget the rights of the perpetrator to a fair trial altogether. So a reasonable legal standard is also important in of itself (forgetting being sued).
We don’t have very good models either inside higher education or in the wider world for an investigative process that isn’t adversarial or interrogatory. We don’t have a good vocabulary for being “fair” that doesn’t refer back to some kind of disinterestedness about outcomes. This is what has kept this kind of process from being supportive to survivors–that the default understanding of “fair” has meant “show no favoritism towards anyone” and “interrogate everything”. There are models for qualitative inquiry that try to understand every event and person sensitively but they’re generally not used to produce definitive findings in a quasi-legal process. For example, an anthropologist can come into a fieldsite already knowing a lot about power, identity, material life, etc., and yet be scrupulously interested in learning new and unexpected things about people and events in that place. A novelist can be quite insightfully “fair” in a “lightly fictionalized” account of real events. But we don’t really have any institutions that ask anthropologists or novelists to render legal judgments using their craft.
… the standards for a finding of assault in an internal procedure would have to be high enough to withstand scrutiny in a civil proceeding and also … they probably ought to be …
To focus on one narrow part of this thoughtful post: discussions of how institutions ought to conduct themselves should not fall into the trap of what ought to be done to avoid lawsuits against the institution. Addressing an issue in that way suggests that the issue may be resolved by recourse to an external and objectively discernible legal standard, which is rarely the case. When institutions take actions that will have serious consequences for particular individuals, the possibility that those individuals will initiate lawsuits is always present, and the legal questions that such lawsuits raise (and how courts will resolve those questions) can rarely be fully anticipated in advance. It is almost always better to put questions of potential liability on the back burner and focus instead on what course of action would best serve the institution, its community, and its values.
By way of example, the Rutgers men’s basketball coach was recently fired after it had come to light that the coach had treated players abusively, including using homophobic and misogynstic epithets and hurling basketballs at the backs of their heads. The university hired a law firm to do an exhaustive examination of whether that conduct might expose the university to a lawsuit, and particularly an antidiscrimination lawsuit. When those allegations became public, it was obvious that that focus on potential liability was too narrow, because it failed to address the more central question of Rutgers ought to have a coach who routinely assaults players. Likewise, I understand that the administrators at Penn State were similarly highly focused on concerns about lawsuits, with even more catastrophic results.
Thank you for taking the time to explore the many issues presented by the Clery Act, Titile IX and the 2011 Dear Colleague Letter.
I find it disturbing that you refer to the claimants as victims before any adjudication of the matter. Even under the disturbingly low standard (one I anticipate eventually being over ruled by the Holy Cross case presently moving through the federal court system) required by the “Dear Colleague” letter, the accused still has some minimal rights including the presumption of innocence.
Additionally, some of the rulings subsequent to the “Dear Colleague” letter appear to be saying that a very minimal amount of alcohol consumed by the alleged victim means the alleged victim cannot consent. Under these circumstances, asking about alcohol consumption can resolve the adjudication in favor of the accuser. The alleged victims alcohol consumption is most relevant and may be conclusive .
Rape is a crime. If a student has been raped the crime should be reported to the police.
Thank you for attempting to provide a venue for productive and tolerant conversation on the Swarthmore campus.
K, I take issue with a couple of points you made.
First, you say that it’s inappropriate to address survivors as victims in this post because it presumes guilt. What do we call the victims of a shooting? Victims. Even though we haven’t proven anything. What do we call someone who was hit by a car? A victim. Even before anyone has gone to court. It’s not presuming guilt. It’s our vernacular. Further, given that college students believe 54% of sexual assault claims are fabricated even though only 2-8% really are, I think we can safely say that presumption of guilt hasn’t been the pressing issue here.
To address the police issue again, please know that under Title IX, federal government explicitly stated that colleges and universities are required to investigate all claims of sexual assault even if the police are also handling it. And let’s not forget that one of the allegations against the college is that they specifically discourage and prevent students from reporting these crimes to the police.
Ms. Brinn,
Your reference to being hit by a car is non-analogous in a number of ways.
If someone is hit by a car there is incontrovertible physical evidence of the impact in almost all cases and therefore clearly the person was hit by a car. In most of the cases being brought before college tribunals there is no physical evidence since the accuser has not made use of a rape kit.
Additionally, the proof of the crime resulting from someone hitting another with a car requires a totally different standard of mens rea. Further making your example non analogous.
Words have meaning. To actively use the word victim implies that an actionable offense occurred before the matter has been adjudicated. The presumption of innocence is a founding principle of this country and it can be a slippery slope to start denying this right to the accused.
You state:
“To address the police issue again, please know that under Title IX, federal government explicitly stated that colleges and universities are required to investigate all claims of sexual assault even if the police are also handling it. And let’s not forget that one of the allegations against the college is that they specifically discourage and prevent students from reporting these crimes to the police.”
Most persons informed on this issue well know that under Title IX these things are required (under pain of institutions loosing all federal funding). That however, prevents no one from reporting a crime to the police when they believe a crime has been committed. This is not an either or situation. An accuser can proceed with both remedies or either or none.
Even if the allegation regarding the college’s agents discouraging students from reporting these alleged crimes is true, I would hope that, particularly given the extraordinary nature of Swarthmore students, Swarthmore students would have the wherewithal to recognize that if a crime was committed it should be reported to the police.
Then, K, you clearly do not understand the nature of trauma.
Brown’s disaster should be a warning for those who want speed at the expense of due process or justice:
http://www.nytimes.com/2010/04/15/us/15student.html?pagewanted=all&_r=0
Tim, thanks for the thoughtful treatment of such a difficult issue. (As you can see, I’m a bit behind on my blog reading!)
I was interested to read alkali’s comment because it speaks to something I was thinking about from the very first comments, when some commenters (who may or may not be current students, I don’t know) seemed to object to your concern about litigation and/or your failure to advocate a process that would unequivocally support complainants/victims/survivors.
I think that the threat of litigation is both real and serious, but I understand why it would seem like no big deal, especially to a student. Swarthmore may be rich by the standards of liberal arts colleges, and may seem timeless and quite secure, but faculty and administrators understand that the dollars on the bottom line are extremely tight and will remain extremely tight.
I don’t think the parallels alkali draws to Rutgers or Penn State are quite apropos. The described situations are two-step: first there was a horrible abusive person in a position of power he should not have been in and then there was legal and PR fallout. And of course a focus on the legal fallout would overlook the PR fallout. The discussion here, in contrast, does not address the PR fallout because the PR fallout is intrinsically connected to the first bad act, hiring and (even worse) then protecting an abusive person. Proper procedures such as the ones Tim is trying to zero in on (and articulating the difficulty of realizing) would largely immunize the school from PR fallout. But they wouldn’t immunize the school from legal fallout, because all you need to create legal fallout is a grudge and a lawyer. Hence, legal liability is a very real issue to consider in trying to develop the “right” sort of system.
In the end, I think Tim and alkali are on the same page though. Tim’s point is that if we try to develop a system that is perfectly fair to everyone it will be slow and expensive, and if we create a system that delivers “justice” to complainants/victims/survivors in a more timely fashion, there will be other liability. The call to see what an outside review might do is a logical outcome: an admission that the system will remain imperfect and messy, but that we can probably improve on it in nonetheless significant ways.
For his or her part, alkali says we should seek a “course of action [that] would best serve the institution, its community, and its values.” I would offer “there is that of God in everyone” and suggest that whatever process is settled on, there should be the option of restorative / truth and reconciliation practices included on some level. As Tucker Reed wrote, she and her rapist were part of the same society.