Main article: Child abuse. See also: Category:Child abuse and Child neglect. Main article: Child sexual abuse. See also: Category:Child sexual abuse , Child sexual abuse laws in the United States , False allegation of child sexual abuse , Laws regarding child sexual abuse , Penn State child sex abuse scandal , and Relationship between child pornography and child sexual abuse. Main article: Child-on-child sexual abuse.
Main article: Civil rights. Main article: Clandestine abuse. Main article: Cyberbullying. Main article: Dating abuse. See also: Date rape. Main article: Defamation. See also: Libel and Slander. Main article: Disability abuse. Main article: Domestic violence. See also: Category:Domestic violence , Christianity and domestic violence , Common couple violence , Domestic violence and pregnancy , Effects of domestic violence on children , Epidemiology of domestic violence , and Islam and domestic violence.
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See also: Category:Human rights abuses. Main article: Humiliation. Main article: Incivility. See also: Workplace incivility.
Underprivileged School Children and the Assault on Dignity
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Main article: Mobbing. Main article: Narcissistic abuse. Main article: Neglect. See also: Child neglect and Self-neglect. Main article: Negligence. See also: Legal malpractice , Malpractice , Medical malpractice , Negligence in employment , and Professional negligence in English Law. Main article: Parental abuse by children. Main article: Passive—aggressive behavior. Main article: Patient abuse. See also: Category:Health care professionals convicted of murdering patients , Experimentation on prisoners , Iatrogenesis , Medical harm , and Medical malpractice.
Main article: Persecution. See also: Category:Persecution and Category:Religious persecution. Main article: Physical abuse. Main article: Torture. See also: Category:Psychological torture techniques. Main articles: Political corruption , Category:Political corruption , Political repression , Category:Political repression , and Political abuse of psychiatry. This section needs expansion. You can help by adding to it. January Main article: Prejudice. Main article: Prisoner abuse. See also: Category:Military prisoner abuse scandals , Experimentation on prisoners , and Prison rape.
Main article: Professional abuse. See also: Malpractice , Professional ethics , Professional negligence in English Law , and Professional responsibility. Main article: Psychological abuse. See also: Category:Psychological abuse. Main article: Racism. Main article: Ragging. Main article: Rape. Main article: Relational aggression. Main article: Religious abuse. See also: Religious discrimination , Religious persecution , Category:Religious persecution , and Religious terrorism. Main article: Rudeness. Main article: Satanic ritual abuse. Main article: School bullying. See also: Bullying in teaching and List of school pranks.
Main article: Sectarianism. Main articles: Self-abasement , Self-blame , Self-destructive behaviour , Self-harm , Self-hatred , Self-neglect , and Self-victimization. Main article: Sexual abuse. Main article: Sexual bullying. See also: Sexual harassment and Sexual misconduct. Main article: Sibling abuse. Main article: Smear campaign. Main article: Spiritual abuse. Main article: Stalking. See also: Cyberstalking and Stalker stalking. Main article: Structural abuse.
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Main article: Abusive power and control.
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April One form taken by these complexes is that of contriving false charges of sexual offenses by men. The unchaste let us call it mentality finds incidental but direct expression in the narration of imaginary sex-incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.
Based on this belief, traditional rape law required that an allegation of rape be promptly lodged and corroborated with male objective evidence rather than female emotional evidence , and that the word of the complainant be met with skepticism. The progressive fight against traditional rape law began with reform of the unique procedural requirements that made most rapes impossible to prosecute: the prompt complaint and corroboration requirements, and cautionary instructions. These requirements were inconsistent with how victims experienced rape. In seeking the abolition of the prompt complaint requirement, reformers pointed out that most rape victims do not promptly complain; in fact, most never report the attack to any authorities.
Once the procedural hurdles waned, most rape cases came down to consent and force, so the substantive questions around the definition of the crime became the focus of progressive reform. A generation of women matured at a time when they felt they had a right to shape the terms of their sexual relationships. Women wanted something better in their sexual lives, and they wanted the law to protect their autonomy to decide with whom to have it.
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That claim retains salience decades later, not only because colleges and universities are adopting disciplinary rules requiring that no means no, 35 but also because the contours of sexual consent remain contested ground. The chant was also a cogent encapsulation of the incentive structure under the substantive norms of traditional rape law. Unlike the Yale pledges, most scholars came to agree with second-wave feminists. They advanced the position that laws around sexuality generally, and rape law specifically, should be designed to protect sexual autonomy.
As a result of social agitation, the law started to shift. In , for example, the New Jersey Supreme Court discussed the purposes of rape law in the modern era:. Today [rape law]. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact.
The court also redefined the statutory force required as the inherent force necessary to penetrate someone without consent. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. In , the U. Attorney General announced a new definition of rape for the Uniform Crime Reports. The principle of sexual autonomy animated these changes and emerged with constitutional import in the same-sex equality cases.
For example, in , the Supreme Court in Lawrence v. To be sure, many states still require force before nonconsensual penetration is recognized as rape. Despite some continued resistance to the criminalization of nonconsensual sex, the tide on the question appears to be shifting. One indication of that shift is that the American Law Institute is revising its more than fifty-year-old model provisions on sexual offenses.
The move to abolish the force requirement is now the central substantive challenge of progressive rape law reform. Once again, the movement is trying to make the criminal law reflect the experience of victims of sexual assault.
Most victims do not experience the kind of physical force that rape law traditionally recognized. For example, in random sample surveys, almost eighty-five percent of rape and sexual assault victims report that no weapon was used during the commission of the offense. Over the past two decades, as the law was beginning to recognize nonconsensual sex as rape, the law surrounding sexual offenses also changed in a very different way.
These changes were conservative and punitive. They were fueled not by the feminist movement, but by politicians reacting to notorious and rare cases of child abduction, rape, and murder. A key component of the feminist movement for legal reform was to highlight the frequency of instances of rape committed by acquaintances and intimates. In this way, the narrative of rape as exceptional behavior committed by aberrant loners worked in opposition to the progressive reform of rape law, which was based on the revelation of the more routine nature of sexual violence by those who are not a stranger to the victim.
In the s, as a result of a series of high-profile cases involving the rape and murder of children by strangers, 58 the conservative, tough-on-crime movement that had focused on the drug war began to shift its focus to sex offenders. For example, the share of federal sexual offenders subject to mandatory minimum sentences rose from five percent in to fifty-one percent in Georgia provides an illustrative example of reform at the state level.
In , Georgia changed its mandatory minimum punishment for rape from one year to ten years. Independent of the criminal sentencing of sex offenders, both federal and state jurisdictions began to impose much more severe civil consequences on sex offenders who had already served their time. Proposed shaming sanctions would go even further than registration and community-notification laws.
Many states and municipalities also passed residency restrictions and created exclusionary zones to bar convicted sex offenders. Punitive laws in one area produced a domino effect for punitive legal change in nearby communities that feared becoming safe havens for sex offenders. The progressive, grassroots anti-rape movement not only did not initiate increased criminal punishments or harsh collateral consequences, it opposed them.
Long mandatory minimum sentences can have a number of negative consequences that serve to decrease, rather than increase, public safety. For example, lengthy mandatory minimum sentences sometimes result in prosecutors not filing charges or filing charges for a lesser crime than a sex offense, as well as increased plea bargains down to a lesser crime. Similarly, judges or juries may be less inclined to convict a defendant on a sex offense because of the mandatory minimum sentence.
Long mandatory minimum sentences can also keep victims who were assaulted by someone they know from reporting the crime. The history of rape law reform is therefore a mixed one. The progressive reform movement in rape law began by focusing on its unique procedural hurdles. Once those were abolished, it moved to the substantive definition of the crime itself, intent on abolishing the force requirement to vindicate sexual autonomy. By contrast, a punitive reform movement in rape law sought to increase dramatically the punishments, both criminal and civil, for a conviction for a sexual offense.
This draconian movement, developed and steered by non-feminists, increased the criminal punishments and collateral consequences of convictions for sexual offenses. It happened during a similar time frame as feminist reform efforts to identify the crime of nonconsensual sex without additional force as rape. But these two ships of reform sailed from different ports and flew different flags. Whenever there is progressive movement in the law, one might predict a backlash designed to secure the privilege that the law is in the process of disrupting.
By contrast, there has been little response to the conservative reform of rape law that increased criminal and civil punishments. Examining the cultural and legal response to criminal rape law reform sets the stage for an understanding of current resistance to the application of Title IX to campus sexual assault. Despite substantial progressive reform of rape law, the criminal justice system continues to fail to address the most common form of rape: non-stranger rape without traditional physical force. Disbelief and disregard are common. For example, over the past couple of decades in cities across the country, police have refused to take complaints, recoded rape complaints as noncrimes, and labeled legitimate complaints as unfounded.
From Philadelphia—where police demoted one-third of reported sex crimes to non-crimes that they did not investigate—to Cleveland, Baltimore, New York, St. Louis, and Milwaukee, law enforcement officers disbelieved victims, blamed them for their assaults, and refused to act on complaints. Even a completed rape kit does not ensure that police will take a report seriously. Law enforcement have failed to process hundreds of thousands of medical forensic sexual assault examination kits, left untested in police storage rooms, crime labs, and hospitals across the country.
Despite the fact that over the last several years Congress has repeatedly appropriated hundreds of millions of dollars to test these kits, 88 the Obama Administration estimates that there are still more than four hundred thousand untested kits. Information from cities large and small paints an appalling picture. According to Human Rights Watch, Los Angeles County had the largest backlog in , with at least 12, untested kits.
Belatedly tested kits have provided leads to hundreds of serial rapists whose subsequent predations might have been prevented had the kits been tested in a timely fashion. In short, the criminal justice system has a two-hundred-year history of bias against victims of sexual assault, which continues today. The continued failure of police to process rape complaints in a fair and impartial fashion suggests the limitations of progressive reform efforts so far.
But more than inertia was at work. Opposition to progressive rape law reform at times has taken the form of conservative political backlash. For example, in , House Republican leaders attempted to introduce a force requirement for rape into the Medicaid law. To demonstrate this proposition, this Feature refers to cultural critics Camille Paglia and Katie Roiphe and law professors Janet Halley and Jed Rubenfeld as examples of how a larger group of commentators have assessed rape law reform and the application of Title IX to campus sexual assault. Katie Roiphe chimed in shortly thereafter, arguing that many complaints of rape are just instances of sexual regret the morning after.
Perhaps, as Paglia argued, rape is natural; perhaps, as Roiphe believed, most allegations of rape are just sexual regret. Whatever the situation, Harvard Law professor Janet Halley argued that contemporary feminism should no longer be the lens through which we analyze the question. Rubenfeld argued instead that sexual penetration should only be labeled as rape if it is perpetrated through bodily violence, or the threat of bodily violence. In particular, rape shares with slavery and torture the same fundamental violation. Requiring torturous or enslaving bodily violence for rape would heighten the force requirement, and potentially decriminalize the majority of rapes.
In contrast to the vocal backlash against progressive rape law reform, there has been relatively little pushback against the punitive reform to rape law that increased punishments and imposed harsh collateral consequences on convicted sex offenders. The scholarly response to draconian, punitive reform has been tepid. There is little scholarship, for instance, on the increase in criminal punishments meted out to those convicted of sex offenses. New mandatory minimums and the movement both at the state and federal level to increase the range of years to which a convicted sex offender may be sentenced have received little attention in the legal academy.
The argument applies to adult offenders as well. In short, while some cultural critics and legal scholars have vocally opposed progressive rape law reform, they have been relatively subdued in response to conservative rape law reform. Progressive reform has suffered political backlash. Regressive reform has been politically embraced. The punitive reform effort was wildly successful and appears politically immovable. The progressive reform effort, by contrast, is contingent and contested.
This history sheds important light on the application of Title IX to campus sexual assault. An increasing awareness of the widespread nature of campus sexual assault facilitated legal change at the state and federal level to address it.
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No matter to which study one refers, campus sexual assault is a large problem. In , Mary Koss published a survey of 6, students at thirty-two college campuses, finding that one in four college women had experienced rape or attempted rape. In , President Barack Obama established a White House Task Force To Protect Students from Sexual Assault, which called for campuses across the country to conduct climate surveys to measure the incidence of sexual victimization on campuses.
The key reforms in response to the problem of campus sexual assault each have analogies in the rape law reform movement. Pushing to make colleges and universities respond equitably to campus sexual assault is analogous to progressive efforts to abolish the unequal procedural hurdles in rape law. The idea of affirmative consent, which has recently taken hold in many colleges and universities, is a standard designed to maximize sexual autonomy, which rape law reformers have advocated for in the criminal law as well.
The second wave of the feminist movement in the late s and early s reinvigorated an effort to pass the Equal Rights Amendment to the U. Constitution and to push for other legal change for equality at the state and federal level. They worked for the passage of Title IX, and then worked behind the scenes advocating for progressive agency interpretations of the law.
For example, in Davis v. In , for example, Brown University students approached campus administration about a number of instances of sexual misconduct committed by their peers and requested that the Brown disciplinary code of conduct explicitly identify sexual misconduct as a violation.
It also coincided with legal advocacy that was changing the scope and impact of Title IX. For example, the Brown activism happened at the same time that the Supreme Court reviewed a case involving sexual harassment of a high-school student and held that students could sue under Title IX for money damages. Indeed, procedures that ensure the Title IX rights of the complainant while at the same time according due process to both parties involved will lead to sound and supportable decisions.
Schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant. Throughout the history of Title IX, OCR has underscored that the law is not designed to advantage complainants over respondents, but to require colleges and universities to respond equitably to allegations of sexual assault. In , OCR issued guidance focused on the due process rights of the accused. In , OCR issued substantial, additional guidance. OCR reaffirmed the necessary procedures to ensure fairness for both the accuser and the accused.
OCR also established steps that schools should take to protect the complainant. When a complaint is made, a school should inform the complainant of options for avoiding the alleged perpetrator. In , OCR published additional clarifications of the requirements set out in OCR reiterated the procedural requirements from the Dear Colleague Letter, and provided additional guidance on how to conduct disciplinary hearings.
For example, schools should not require that a complainant and the accused be in the same room at the same time if the accuser requests otherwise; and schools must be able to provide arrangements such as closed circuit television to allow the parties to avoid one another, if needed. OCR also provided more information about interim measures available to schools during an investigation. Shortly after OCR issued its Dear Colleague Letter, one of the first complaints addressed by OCR was against Yale University for failing to respond promptly and equitably to incidents of sexual harassment and rape.
The sexually hostile behavior that Yale fraternity pledges expressed was not unique. In recent years, OCR oversaw a tenfold increase in sexual assault complaints against colleges and universities. OCR also stepped up enforcement. OCR now posts a list of campuses under investigation as well as settlement agreements online. These settlement agreements often contain requirements for nondiscrimination notices; university grievance procedures; training for school officials, faculty, and students; and campus climate surveys. Equitable assessment and resolution of complaints of sexual assault on campus is the centerpiece of OCR guidance on Title IX.
Prompt and equitable responses to complaints of sexual abuse are exactly what progressive reformers had previously sought in rape law. OCR has so far declined to enter the substantive conversations about how to define sexual assault on college campuses. However, at the same time that OCR was stepping up enforcement of Title IX against sexually hostile environments at colleges and universities, many campuses adopted affirmative consent standards to govern sexual behavior. Meaningful consent must be active, and a person should have to communicate positive, verbal or nonverbal agreement to engage in penetration before someone else should be allowed to penetrate them.
Affirmative consent derives from the notion that bodies are not generally available for sexual penetration. Affirmative consent thus rejects the argument that mere submission or acquiescence is sufficient for consent. The notion of agreement between the parties as consent is not new in the criminal law. A plurality of U. Where colleges and universities have not, states have begun to impose them on campuses within their jurisdictions.
California was first. The California Coalition Against Sexual Assault developed and advanced an affirmative consent law for California campuses after trying and failing to reform the California criminal code to outlaw nonconsensual sex by statute. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.
The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent. New York followed suit with a campus mandate shortly thereafter. Its law defined affirmative consent for New York colleges and universities in this way:.
Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. About 1, colleges and universities now use affirmative consent rules for sexual misconduct.
In sum, colleges and universities have evolved both procedurally and substantively in how they address campus sexual assault. Procedurally, OCR imposed a set of new and progressive requirements for campuses to resolve allegations of campus sexual assault promptly and equitably. Substantively, many campuses have adopted affirmative consent standards for sexual relations, which enhance sexual autonomy. These steps mirror the history of progressive attempts to reform rape law.
Demands to respond equitably to campus rape are analogous to demands that rape law no longer harbor unique procedural hurdles for rape victims. Affirmative consent for sexual penetration is a rule to protect the kind of sexual autonomy that many progressives have worked to implement in the criminal rape law for decades, and in fact only emerged as a mandate for colleges and universities in California when attempts to criminalize nonconsensual sex in that state failed.
Resistance to progressive reform of campus sexual assault, including the application of Title IX and the adoption of affirmative consent rules, has followed a somewhat predictable trajectory, given the history of rape law reform. Nevertheless, the reaction to students accused of or found responsible for sexual assault on campus has been quite different from the reaction to criminal sex offenders. Before OCR began robustly enforcing Title IX against sexual assault, some campuses responded to student activism around the issue by adopting the discredited procedural requirements from criminal rape law.
In , the Faculty of Arts and Sciences at Harvard College adopted a strong statement against sexual misconduct on campus. In the final case, the Board found the accuser and the accused equally responsible and required them both to withdraw from the college. Complaints must ordinarily be brought to the College in a timely manner. The Board typically cannot resolve peer dispute cases in which there is little evidence except the conflicting statements of the principals. Therefore, the Board ordinarily will not consider a case unless the allegations presented by the complaining party are supported by independent corroborating evidence.
Based on the information provided at the time of the complaint, the Board will decide whether or not there appears to be sufficient corroborating evidence to pursue the complaint. These procedures implemented three specific procedural hurdles that harken back to prereform rape law. Following student complaints to OCR for Title IX violations, Harvard has changed its sexual assault policies and procedures a number of times since But the importation of prompt complaint and corroboration rules and cautionary language from the criminal law into the disciplinary code for sexual assault makes clear that these hurdles were designed to facilitate the disposal of campus sexual assault cases, in the same way that the same hurdles were designed to facilitate the disposal of rape cases in the criminal law.
Independent of imposing the exact hurdles discredited in rape law on campus sexual assault procedures, opponents of progressive reform argue that disciplinary proceedings for sexual assault may violate due process. Some are calling for new, enhanced procedural protections for students accused of sexual misconduct. First, OCR mandates and campuses grant students accused of sexual assault insufficient process in campus disciplinary proceedings.
Students who engage in nonsexual assault on campus, for instance, have no right to an attorney provided for them. Affording the right to an attorney only to those accused of campus sexual assault would mirror the traditional special burdens placed on rape prosecutions in the criminal law. To win their process argument, opponents must make the case for why respondents in campus sexual assault cases should enjoy uniquely favorable rights—or make the case for increased process rights for all students accused of misconduct—neither of which, so far, they have done.
It suggests a stronger interest in protecting those accused of sexual assault than those accused of other campus misconduct who face the same limited process rights and potential consequences of campus adjudication gone wrong. In terms of the second argument on the standard of proof, opponents argue that the preponderance of the evidence standard fails to protect students who are accused of sexual assault from false accusations. They could be lodged against applying the same standard of proof in campus adjudication of other misconduct, such as theft, fraud, embezzlement, or negligent homicide.
That opponents have asserted an enthusiasm for a robust standard of proof only in cases of campus sexual assault is troubling. Again, it bespeaks a concern, not for due process on campus, but for those accused of sexual assault over those accused of other misconduct. Civil rights cases that go to formal courts of law are assessed based on a preponderance of the evidence standard. Historically, only one in five colleges and universities identified any standard of proof in their codes, and among those that did, eighty percent used a preponderance of the evidence standard.
Other than at the University of Pennsylvania and the few other campuses that already use a higher standard of proof, however, opponents of preponderance of the evidence are requesting a standard of proof that is uniquely harder to meet. Preponderance of the evidence is the standard used throughout the justice system, except when life or liberty is at stake. Standard cases in civil court, including sexual harassment cases, are evaluated by a preponderance of the evidence standard. If the victim of a sexual assault sues the perpetrator for damages, a court of law will apply a preponderance standard.
There is nothing anomalous or inappropriate in using the preponderance standard to decide the facts in a campus disciplinary system. I t is not clear why the standard would be different in disciplinary proceedings for sexual assault, where no criminal punishments or civil collateral consequences accompany a finding of responsibility. One could claim that heightened procedural protections or a heightened standard of proof are necessary in cases of campus sexual assault because OCR is exerting too much pressure on colleges and universities.
On the contrary, OCR demands equitable procedures as between the complainant and the respondent; it has not found a violation of Title IX in every investigation; it has found some campuses are in compliance with Title IX when they rule in favor of respondents in sexual assault cases; and it has never removed federal funding from a campus on the basis of its failure to comply with the Dear Colleague Letter. To be sure, colleges and universities do not always adjudicate allegations of sexual assault well. They have not been adjudicating these kinds of claims for very long.
Since , under the guidance of the Dear Colleague Letter, campuses have begun to tackle these issues in earnest. Many colleges are working to implement Title IX in a strong, fair, and equitable way. Some colleges, however, are failing: denying victims a safe, equitable environment, as Title IX requires, or denying accused students fairness in disciplinary adjudication, in ways that Title IX does not require and the Constitution will not stand.
In the latter cases, however, accused students are suing their colleges and universities in court and winning. So campuses face powerful legal incentives on both sides to address campus sexual assault, and to do so fairly and impartially. Federal courts have held that public colleges and universities must afford accused students certain minimum protections in campus disciplinary proceedings. In the Gomes v. University of Maine System case, for instance, a student challenged the process the University of Maine offered in a student disciplinary proceeding.
These are important rights that both private and public school students accused of any kind of misconduct should have. However, to go much further than these basic procedural rights, which should apply in any adjudicatory process on campus, and single out respondents in sexual assault cases for special protection, would be unwise. However, where a college or university requires a respondent to cooperate with an investigation and testify in disciplinary proceedings, there is a serious Fifth Amendment concern, because testimony may be used against the accused in a later criminal proceeding.
To protect the Fifth Amendment rights of students who are subject to campus disciplinary proceedings and may be later prosecuted for criminal actions, colleges and universities could provide students a right to remain silent in campus proceedings with no adverse inference drawn. Alternatively, courts or legislatures could provide accused students with use immunity for statements made in disciplinary proceedings, barring those statements and the fruits thereof from being admitted in subsequent criminal proceedings. Crafting these or other possible solutions is an important area for further research.
Efforts to provide those accused of sexual assault with heightened process rights in campus disciplinary proceedings without affording those rights to students facing other disciplinary allegations mirrors the heightened procedural hurdles that rape victims faced in the criminal law. In the criminal law context, procedural hurdles deterred rape victims from coming forward and placed them in an unequal position relative to victims of other crimes. Likewise, in the campus context, heightened process rights for those accused of sexual assault would deter victims from coming forward and place them in an unequal position relative to victims of other campus misconduct.
It may come as no surprise that the same people who scoffed at the progressive reform of rape law have also criticized the changes in how campuses handle sexual assault. Critics have developed a fascinating argument about the damage a concern for campus sexual assault itself causes.
The argument is that feminist concern for sexual assault and campus adjudication of allegations of sexual assault actually harms women. This theory begins as a denial of the problem of sexual assault on campus, but then it evolves into the notion that feminists, not those who commit sexual assault, are creating the victims. Could feminism be like adults on the playground? Imagine: the little girl stumbles, falls, scrapes her knee. She is silent, still, composed, waiting for the kaleidoscope of dizziness, surprise, and pain to subside.
Up rush the adults, ululating in sympathy, urgently concerned—has she broken her leg? Is she bleeding? How did this happen? We must not let it happen again! Poor thing. Not just feminist perspectives on rape are at fault. New survey instruments and revised disciplinary codes are themselves part of the problem. Rubenfeld turned to the rules of the disciplinary code itself to lodge a similar complaint.
The specter of the lying female undergirds this argument, but she has changed. We must be extra skeptical. Post-sex regret morphs into an allegation of rape after a pat down by the P. Opponents of applying Title IX to campus sexual assault tend to humanize the accused in ways that sex offenders have rarely been humanized in the popular media, and they tend to highlight the negative consequences if one is found responsible under a campus disciplinary system. Examples abound. In the Steubenville rape case, high school athletes repeatedly sexually assaulted a girl incapacitated by alcohol and then documented and bragged about the acts on social media.
Students are sympathetic, to be sure. It is, more importantly, a way of framing culpability. The notion that these were potential or actual college kids, good upstanding citizens, is a description coded for class and race privilege and dignity, so as to relieve the accused of responsibility, or at least lessen it.
Whereas potential or actual sex offenders are branded as subhuman, worthy of banishment and community shame by the conservative rape reform movement, potential or actual campus sexual assailants are often described in ways that suggest they are merely error-prone humans, worthy of redemption. They, too, are error-prone humans, worthy of redemption.
They often face extreme consequences, criminal and civil, when found guilty, consequences that reduce or eliminate their potential for reintegration and redemption. Despite a long and continued history of bias against victims of sexual assault, oft-repeated arguments by opponents of Title IX tend to idealize the criminal law and disparage the campus disciplinary system. Campuses are ill equipped to handle complaints of sexual assault, we are told; these complaints should be directed to the criminal justice system where real justice resides.
They are not equipped or trained for legal inquiry. They do not. The point is that campuses must use their resources to provide students with equal access to education. A recent House Republican bill would have prohibited campuses from investigating a sexual assault unless the victim reported the assault to the police. Nonetheless, the argument against campus involvement is framed as if this is a choice between two forums, one competent to handle these cases the criminal justice system and one incompetent to handle them the campus disciplinary system. Or, to the extent that the criminal justice system is a problem, it is characterized as a relatively minor one that can and should be fixed, as if the task of fixing it is more modest than making colleges and universities competent to adjudicate campus sexual assault.
The notion that there is a simple choice between campuses adjudicating responsibility for sexual assault or courts prosecuting sexual assault as a crime misses a key point. Opponents of Title IX sexual assault adjudications are not working hard to help the criminal justice system address acquaintance rape without extrinsic violence. They do not simply conclude that, on balance, it is better for sexual assault victims to pursue their claims in courts rather than in campus disciplinary tribunals.
Rather, many are attempting to close the courthouse doors to victims of acquaintance rape without extrinsic force, and then close the doors to campus tribunals to those same victims as well. The vast majority of acquaintance rape victims would be left in the cold. Many opponents of the progressive reform of campus sexual assault rules also oppose the progressive reform of rape law. They oppose both the abolition of the force requirement in state laws and the imposition of affirmative consent rules in campus codes. The unacknowledged but real choice they pose is between offering most victims of sexual assault legal or disciplinary redress in some forum, or none at all, and their arguments tend to support the latter camp.
Campus acquaintance rape victims deserve redress, and they do not have much hope of it in the criminal justice system. In order to generate and transmit knowledge, colleges and universities must provide a safe learning environment for all students. Moreover, colleges and universities have disciplined students since the early part of the nineteenth century, independent of courts. Moreover, campuses have occasionally had to adjudicate cases that are more serious than felonious rape. In , for example, a college fraternity hazing ritual in Pennsylvania ended in the death of a pledge by blunt force trauma to the head.
People recognized the obvious: campuses have different interests in the case and different reasons to be involved. They have to work to protect their students from harm. Colleges do not have the penological interest of the state. Their interest is educational opportunity, and Title IX requires them to provide it to students equally. Title IX is about institutional accountability, a civil rights mechanism to hold institutions accountable for providing equal education.
The criminal justice system, by contrast, is about the individual accountability of a person accused of a crime. The criminal justice system focuses on finding individual offenders and punishing them. Whether or not criminal charges ever emerge, colleges must address campus sexual assault to maintain a safe and equal learning environment. Moreover, given the history of rape law reform, procedural exceptionalism for campus sexual assault suggests that something is amiss.
It would be unfair to single out sexual assault cases among all crimes committed on campus and push them to the criminal courts. The arguments that opponents make to the progressive reform of campus adjudication of sexual assault often seem reasonable, but they tend to neglect the specific lessons gleaned from the history of rape law reform. A robust standard of proof for campus sexual assault e. Unique procedural hurdles in rape cases e.
We should be wary of new calls to provide campus sexual assault respondents with special procedural protections just as we have eliminated them from the criminal law. The history of rape law sheds light on where we should put our energy and how we should anticipate and respond to arguments around campus sexual assault.
Those working to apply Title IX to campus sexual assault can learn from that history. The following lessons emerge. For starters, we should support campus adjudication of sexual assault because the criminal justice system has inadequately addressed the very kind of rape most common on and off campus: acquaintance rape without extrinsic violence. Even after extensive, progressive reform of rape law, the criminal justice system still often fails to take rape seriously. The history of a societal embrace of conservative reforms meant to overpunish convicted offenders and the powerful resistance to progressive reforms to make the law conform to the experience of rape victims should give us pause.
We should support new forums in which sexual assault victims may receive some opportunity to tell their stories with dignity and the possibility of redress, including campus disciplinary systems. Moreover, although colleges and universities are just learning about how to address the issue of sexual assault and do not always adjudicate it well, they are used to adjudicating disputes between students. Some of those disputes cover criminal behavior and some do not. Sexual assault is a relatively new area for campus adjudication, but only because schools have ignored it or swept it under the rug for so long.
Colleges and universities can and will learn to address sexual assault equitably. Finally, we should support campus disciplinary proceedings because sexual assault makes victims unequal and impedes their ability to attend and complete college. Title IX is about what it means to have equal access to education when one student harms another. The primary responsibility of colleges and universities is education, and they must provide all their students with an equal opportunity to it.
The differences between the criminal justice system and Title IX are important. The criminal justice system is focused on the punishment of criminals. It is focused on retribution and incapacitation. Title IX, by contrast, is a civil rights statute. Like other civil rights statutes, it is focused on equality—in this case, educational equality.
The criminal justice system cannot ensure equality, and cannot remedy inequality. Colleges and universities have to be able to address campus sexual assault and act to protect the learning environment. Historically, providing defendants accused of rape unique procedural protections heightened the standard of proof in rape cases.
Legal scholars and others committed to a free society should support the due process rights for the accused. Although we should be strong defenders of process, we should not support more process than what is due, and we should oppose unique procedural protections offered only to those accused of sexual misconduct.
As a matter of the equities, we should oppose any unique procedural protections offered to those accused of sexual offenses on campus when they are not also provided to those accused of nonsexual offenses. Unique hurdles for sexual assault victims and special process protections for those accused of sexual misconduct are unfair and harken back to a time when rape victims faced unique hurdles in criminal prosecution. We should be on the side of an even playing field as between sexual misconduct and nonsexual misconduct in both the criminal law and campus disciplinary codes.
That even playing field could provide more or less process for accused students in campus proceedings of all kinds, as long as the process afforded was the same whether the accused was facing charges of sexual or nonsexual misconduct. In general, we should be skeptical of rape or sexual assault exceptionalism. The history of attempting to deter legitimate complaints of rape by imposing unique procedural hurdles is too clear to ignore.
The history of feminist opposition to draconian criminal and civil punishments to convictions for rape should influence our response to recent calls for mandatory penalties on campus. We should oppose any moves to increase the penalties for campus sexual assault across the board or to impose mandatory minimum penalties upon those found responsible for sexual assault.
Harsh penalties will deter reporting of routine sexual assaults, deter pursuit of such claims by administrators responsible for deciding when to pursue or close cases, and deter finding respondents responsible. It sets students up for public scorn that can be inhumane. As the NAESV warned about draconian criminal sanctions, public shaming sanctions on campus may deter disciplinary bodies from finding responsibility in cases of sexual assault. We should oppose any required sanctions on campus and should be concerned about overreach that is both counterproductive to victims and unfair to those who are accused.
As the history of rape law reform sheds interesting light on the process of reforming how campuses address sexual assault, the changes in campus sexual assault codes may in turn shed instructive light on rape law. For example, disciplinary codes requiring affirmative consent for campus sexual activity will provide a laboratory for the usefulness and effectiveness of affirmative consent as a way of demarcating illegitimate from legitimate sexual penetration.