College Justice and Title IX: Addressing Violence Against Women

The following blog post is the extended article that was submitted to the Wall Street Journal in response to the opinion piece “Taranto: An Education in College Justice." The shortened version is available here as part of several letters to the editor published on December 12, 2013.

The woman that Joshua Strange met at Auburn University will likely never forget him either. The incident Taranto frames as an “intimate encounter” in his opinion article is a poor euphemism for what is described as a forcible sodomy commenced when the victim was asleep. The alleged assault occurred in the context of intimate partner violence that later included an allegation of physical abuse. While the author suggests Strange was “cleared” by the criminal justice system, the reality is that efforts to prosecute were not successful, which does not necessarily equate to actual innocence.

For over two decades, Congress has acknowledged the criminal justice system’s failure to adequately address violent crimes against women. This led to the passage of the Violence Against Women Act (VAWA) in 1994. This last year Congress reauthorized VAWA and expanded it to include the Campus Sexual Violence Elimination Act (SaVE) Act, which establishes standards for how colleges and universities address sexual assault, dating violence, domestic violence, and stalking on campus. If anything, the story of Strange highlights the need for this law, given the context of intimate partner violence and sexual assault. Rather than a “war on men,” our government is earnestly seeking to address violence against women by creating mechanisms that ensure the safety of abused women.

In addition to VAWA, the federal civil rights statute Title IX also addresses violence against women on campus. Title IX has existed for over 40 years to protect against sex discrimination, which has been interpreted to include sexual harassment and sexual violence. Taranto indirectly addresses this law through the mention of “an April 2011 directive” or “Ms. Ali’s directive,” which is the 2011 Title IX Guidance or “Dear Colleague Letter.” The U.S. Department of Education issued this latest guidance to clarify how Title IX obligates schools to address sexual harassment and violence as supported by case law. Inspired by this guidance, advocates such as myself successfully lobbied for some of its provisions to be included in the Campus SaVE Act, making them federal law.

[Signing of the 2013 VAWA Reauthorization]

While Taranto wants readers to be shocked at the due process afforded to Strange in his proceeding, he is making an error the 2011 Title IX Guidance corrected: campus judicial process are separate from the criminal process. Unlike a criminal trial, Strange faced a school hearing for misconduct based on a violation of the student handbook. Such an accusation simply does not warrant the same level of due process as one facing a felony charge for a sex offense. Several courts have upheld minimal due process standards in campus proceedings, such as the venerable Judge Posner in Osteen v. Henley (1993), who specifically rejected the transformation of a campus proceeding into an adversarial justice system.

For Title IX based proceedings, such as those where sexual harassment or violence has been alleged, campus judicial hearings must be “equitable.” That means even-handed due process for both parties so they have the same notice, same opportunity to present witnesses, and same ability to speak. So, for example, when the woman stated she was locked in the room after the alleged sexual assault, Strange was also given an opportunity to present his side of the story that he locked himself out of the room. The campus officials could then come to their own conclusion regarding who was more credible – perhaps finding that Strange had control of that situation and limited the woman’s movements against her will. This would be a reasonable given that the women’s testimony was found credible in a civil court to award her a restraining order against Strange.

Rather that a travesty of justice, the Strange case highlights the growing commitment by colleges, such as Auburn University, to apply federal law that addresses violence against women. It is important to remember that while this campus proceeding resulted in Strange’s removal from Auburn, it does not prevent him from seeking an education elsewhere nor would the result have even become public had Taranto not published about the case. Rather this proceeding allowed the woman to continue seeking her education on campus free from the risk of ongoing violence or abuse, as is her and every student’s right under Title IX.

Dear Prudence: Stop Victim Blaming

Original Post from Huffington Post 10/20/2013 01:17pm

As one of the three victim's Emily Yoffe interviewed for her recent Slate article "College Women: Stop Getting Drunk" I am deeply disappointed more was not done to prevent it from becoming a classic victim-blaming cautionary tale. Whenever women are continually burdened with preventing sexual violence we minimizes the responsibility of rapists, contributes to the underreporting of sexual violence, and reinforces a rape tolerant culture.

Let me be clear, I don't disagree that there is a troubling culture around alcohol that facilitates sexual violence, but telling women to stop drinking to avoid getting raped is simply victim blaming. Instead of addressing the source of sexual violence, which is a small group of young men on campus, your article focused on women who are almost exclusively the targets of social message about preventing sexual assault. Other than a few cursory acknowledgments that men should be punished for sexual violence, you focused solely on women with the hope that their restraint in drinking behavior will "trickle down to the men." At least in response to your critics you recognized that we need to education young men, however you remained defensive about needing to still send messages to women, which shows you still don't get it.

For far too long our society has sent messages solely to women about sexual violence: "don't walk alone," "don't be out at night," and now "don't drink." Basically it is a "don't get raped" message that places responsibility on victims, who by definition are not responsible for the crime done to them. This has been justified as risk reduction, but our society can reduce risk by messaging to young men rather than placing responsibility for their actions upon their victims.

So, where are the messages to the young men that you have acknowledged we need? Here are some suggestions: "Don't force sex," "don't prey on the intoxicated," and "don't get drunk." As society, we need the more meaningful message of "don't rape" so that men realize the responsibility to prevent sexual assault is on them. Parents need to be doing more than telling their daughters to be safe - they need to be telling their sons to engage only in consensual sex (especially after the report that 10% of teens admit to forcing sexual contact on their partners).

One of the worst things about sending women more "don't get raped" messages is that it contributes to the already large underreporting of campus sexual violence, which was even noted by Kreb's study cited by Yoffe. Victims of alcohol-facilitated sexual assault wrongfully blame themselves for the crime at higher rates than other victims and are therefore less likely to report. This is a serious issue because men who use alcohol to facilitate sexual violence are most often serial rapists who continue on to commit 9 out of 10 rapes, according to Dr. Lisak's research. Messages that put the burden on women shame them into silence after they are victimized and contribute the cycle of campus sexual assault. Rather than setting women up to blame themselves for a sexual assault, we need to let women know that as a society we will blame the men that chose to harm them. Without that message, underreporting of alcohol-facilitated sexual assault will continue because serial rapists will get away with their crimes.

It is important to know that Dr. Lisak's research on serial rapists focused not just on the use of alcohol to facilitate sexual violence, but also on its use as an excuse for the crime. Alcohol does diminishes the capacity of an individual to resist a sexual assault, but that is not the only reason it is used by serial rapists. Another main reason for its use is as an excuse. Too often our society excuses alcohol-facilitated sexual assault as "miscommunication" or as "gray rape" (this absurd notion that a man can "unwittingly" violates a woman because alcohol made the sexual encounter unclear). Dr. Lisak's research is meant to turn these excuses on their head and show that alcohol is purposefully being used in a predatory fashion and that there is no confusion or miscommunication. Serial rapists know society will excuse their conduct because of alcohol and unless we combat that notion we will never successfully address campus sexual assault.

Our rape tolerant society needs to change. That is the premise behind the White House's No More campaign. Alcohol can no longer be an excuse for rapists to rape. It also cannot continue serving as an excuse for prosecutors not to take a rape case to trial or campus officials not to enforce a Title IX policy. We have a rape tolerant society that shies away from holding men accountable for sexual assault when alcohol is involved because of the false narratives mentioned before, "miscommunication" and "gray rape." We need to have officials understand Dr. Lisak's research so we can identify and successfully prosecutor or discipline the few who commit so many sexual assaults. Steubenville is an example of the message society gets when we demand justice for alcohol-facilitated sexual violence rather than accept it as a consequence of a woman's choice to drink.

Slate had a meaningfully opportunity with its article to challenge how our society views alcohol as an excuse for sexual violence, but instead it added another cautionary tale to the mountain of victim blaming message given to women. For all the victims out there, you are not responsible for sexual assault. The person who harmed you is responsible along with our society, which has let alcohol be an excuse for far too long. No more.