Dahlia Lithwick: Campus Sexual Assault Response ‘Failed Spectacularly’

Last week, Rolling Stone published the harrowing account of a University of Virginia (UVA, where I went to law school) student who claims she was brutally raped by seven men at a fraternity house party. Following the article’s publication, UVA administrators, students, faculty, alumni, and commentators across the country have responded, seeking a way to effectively combat the problem of campus sexual assault. To start, UVA has suspended all fraternities and sororities until the start of the spring semester and is soliciting feedback on a proposed new sexual misconduct policy.

But in the wake of this latest scandal, a more fundamental concern demands attention: Are universities capable of dealing with these felony crimes at all?

Yesterday, Slate’s Dahlia Lithwick joined the growing ranks of commentators considering that threshold question. “How is it possible,” Lithwick asks, “that a crime as serious as an aggravated, premeditated gang rape can be funneled into an internal disciplinary process?” The “simple answer is that the law requires it,” Lithwick writes, referring to current Title IX regulatory requirements that universities have internal mechanisms in place to address claims of sexual discrimination, including sexual harassment and even sexual violence.

But, citing FIRE, Lithwick concludes that this mandate has failed:

At UVA, that system appears to have resulted in a systematic process of deflecting cases out of the criminal justice system, leaving perpetrators undisciplined and the campus unaware of what looks to be a repeated pattern of vicious rapes. Victims were given so many options, and even a violent gang rape went unreported to the police. As Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, wrote in the New York Times this fall, internal school investigations disserve both the victims and the accused in sexual misconduct cases. “Accused students are routinely denied the most basic elements of due process, such as the right to see the evidence against them and the right to confront, even indirectly, the accuser. Not only is this terribly unfair to students accused of serious wrongdoing, but it undermines the integrity of the process in a way that harms everyone involved.”

Lithwick notes the impossible position of university administrators in the current regulatory environment, citing the blame placed on UVA Associate Dean of Students Nicole Eramo for allowing rape allegations to go unreported:

[An interview with Eramo] perfectly reflects the problem UVA has constructed: Eramo was tasked with handling sexual assault in a non-criminal, survivor-centered, confidential, internal setting, and she is now on the hook for not having run a crack Special Victims Unit.

Lithwick also points to some important observations from The Nation’s Michelle Goldberg. Lithwick quotes Goldberg’s observation that “[t]reating rape cases as internal disciplinary matters to be handled by amateurs trivializes a serious felony.” Goldberg argues that campus disciplinary boards are often “more invested in protecting the school’s reputation than in seeking justice.” That self-preservation approach could swing either way, motivating a college to find a guilty star athlete “not responsible,” for example, or alternatively to find an innocent student “responsible” in an effort to avoid a Title IX complaint and an investigation by the U.S. Department of Education’s Office for Civil Rights.

Lithwick urges readers to ask, “[H]aving crafted an internal system that either masks or exacerbates many of the worst features of the systems it seeks to replace, do we want to stand by it?” FIRE believes that we cannot. As we have pointed out before, the broken status quo fails all involved. Instead, we agree with the Rape, Abuse and Incest National Network, which argued in a February letter to the White House Task Force to Protect Students from Sexual Assault cited by Lithwick that it is “imperative that colleges and universities partner with local law enforcement around these crimes—from the time of report to resolution.” Until the criminal justice system—not the campus judicial system—is responsible for campus sexual assault cases, the failures will continue.