Bernie Sanders: Campus Sexual Assault Requires Law Enforcement Response

Speaking to an audience at the Black & Brown Democratic Presidential Forum in Iowa yesterday, United States Senator (VT) and presidential candidate Bernie Sanders echoed FIRE’s position in calling for law enforcement professionals to handle allegations of campus sexual assault. The Hill reports that Sanders argued, “If a student rapes another student it has got to be understood as a very serious crime, it has to get outside of the school and have a police investigation and that has to take place.” Sanders added, “Rape and assault is rape or assault whether it takes place on a campus or a dark street.”  

FIRE agrees. As I told Congress last September when I testified before the House Committee on Education and the Workforce’s Subcommittee on Higher Education and Workforce Training:

Victims of sexual assault deserve justice. Justice can only be served by competent professionals. Instead of creating a parallel justice system staffed by inexperienced, partial, and unqualified campus administrators to adjudicate campus sexual assault, policymakers should instead take this opportunity to improve and expand the effectiveness and efficiency of our criminal justice system to ensure that it provides an appropriately thorough, prompt, and fair response to allegations of campus sexual assault. Professional law enforcement and courts have the benefit of years of expertise, forensics, and legal tools like subpoenas and sworn testimony that are not available to campus adjudicators. These resources should be brought to bear on campus.

Sanders is in good company with his remarks. In a comment filed in March 2014 with the White House Task Force to Protect Students from Sexual Assault, the Rape, Abuse & Incest National Network (RAINN), one of the country’s most respected victims’ rights advocacy groups, stated that it is “imperative that colleges and universities partner with local law enforcement around these crimes – from the time of report to resolution.”

RAINN’s comment emphasized the need to treat campus sexual assaults “as the felonies that they are,” warning that “we will not make the progress we hope” for without doing so:

The FBI, for purposes of its Uniform Crime Reports, has a hierarchy of crimes — a ranking of violent crimes in order of seriousness. Murder, of course, ranks first. Second is rape. It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault? We need to get to a point where it seems just as inappropriate to treat rape so lightly.

While we respect the seriousness with which many schools treat such internal processes, and the good intentions and good faith of many who devote their time to participating in such processes, the simple fact is that these internal boards were designed to adjudicate charges like plagiarism, not violent felonies. The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: they lack protections for the accused while often tormenting victims.

And again, FIRE and RAINN aren’t alone in reaching the same common sense conclusion that Bernie Sanders voiced yesterday. In legal scholarship published in the Yale Law & Policy Review last year, Janet Napolitano, president of the University of California System and former secretary of the Department of Homeland Security, raised the same questions about whether colleges are truly capable of effectively and fairly handling campus sexual assault allegations. She wrote:

Are these roles that are well suited for our nation’s institutions of higher education? Survivors are choosing not to report to law enforcement because of their lack of faith and confidence in the criminal justice system. If that is the case, it can be argued that rather than pushing institutions to be surrogates for the criminal justice system, more work should be done to improve that system’s handling and prosecution of sexual assault cases. Law enforcement has the tools to effectively investigate these crimes. The criminal justice process has the authority to impose serious punishments on offenders, including incarceration. The most serious sanction that a college can impose is dismissal, which is wholly inadequate where a crime has been committed. Having law enforcement conduct investigations ensures, if properly done, that effective investigations will be conducted and that there will be appropriate punishments that have a strong deterrent effect, all to the ultimate benefit of the survivors and the safety of the university community as a whole.

Sanders is the latest U.S. senator to take this common sense position. In a Senate hearing in December 2014, Senator Sheldon Whitehouse explained:

As a former United States Attorney and Attorney General for my state, I am concerned that law enforcement is being marginalized when it comes to the crime of campus sexual assault. I am concerned that the specter of flawed law enforcement overshadows the harm of marginalized law enforcement. Anything can be done badly. But law enforcement done right makes sure forensic and electronic evidence is properly collected and preserved. It empowers the victim. It informs her of her continuing power through the stages of investigation and prosecution. It brings professionalism and tools like subpoenas and grand jury in the place of amateur university investigations. It eludes the built in conflict of interest of a university that wants the sexual assault problem minimized or hushed. And it sends an important societal signal when after a rape the crime scene has police tape up, and evidence vans, and officers taking statements—a signal that what happened was serious. At its best, law enforcement response is victim-centered and well coordinated with both medical and mental health and advocacy professionals.

When a rape victim is steered away from law enforcement, based on uninformed choices on proceeding or because the relationship between the university and law enforcement is so weak that contacting law enforcement is a step into a dark unknown, and the victim later loses the chance for justice, she has been victimized all over again. The student has the right to know that delays in opening an investigation and collecting evidence could mean the disappearance of evidence all together and could end up opening up devastating questioning by a future defense attorney. Until we are willing to put more information and control right away in the hands of victims they simply will not trust the system enough to report sexual assaults in the first place. We know this sadly from experience.

Sanders and Whitehouse should know that the public agrees with them, too. For example, a February 2014 poll by The Huffington Post and YouGov revealed that of the 1,000 adults surveyed, only 14% thought “colleges and universities do a good … job handling cases of students reporting rape, sexual assault or harassment.” 42% of respondents thought they did a “bad job,” and 44% weren’t sure. Similar results were confirmed in a January 2015 poll in Virginia, where 90% of the respondents indicated that colleges should be required to report those allegations to police.

Public sentiment aside, Sanders’ position is already attracting criticism from some quarters. For example, writing for Feministing today, Know Your IX co-founder Alexandra Brodsky labels Sanders “uninformed” and asks whether “this is the side of history on which Sanders wants to stand.” Arguing that “[t]o treat gender violence as only a crime is to give up on the project of campus sex equality,” Brodsky posits that “school remedies, like dorm changes and tutoring, are crucially important for a survivor’s ability to learn.”

These kinds of immediate, on-campus responses are indeed necessary. As I wrote for The Washington Post last January, colleges are well-equipped to provide support services to students alleging sexual assault:

To fulfill their legal and moral obligations under Title IX, colleges should focus on tasks they are competent to perform: conducting preventive education, securing counseling for alleged victims and providing academic and housing accommodations to keep students safe while the wheels of justice turn. Colleges should also quickly connect student complainants to medical resources and law enforcement, and they should provide them with the resources they need to navigate the criminal justice system. Colleges are capable of fulfilling such responsibilities successfully. These accommodations could even be implemented on an interim basis while a criminal case is adjudicated in court, to be removed when appropriate or should an accusation be unsubstantiated.

But as Sanders recognizes, the bottom line is that rape must be treated like the incredibly serious crime it is. Providing immediate support services shouldn’t preclude the involvement of law enforcement professionals, who are far better equipped than self-interested campus administrators to properly respond to such serious claims.

FIRE is happy to see Senator Sanders support a common sense response to sexual assault on campus. We stand ready to work with him to ensure that campus sexual assault is addressed in a manner that treats such accusations with the seriousness they require.