WASHINGTON -- Colleges' mishandling of sexual assault may continue to occupy the national spotlight, but the criminal justice system has done a worse job supporting and addressing the needs of victims, Sen. Claire McCaskill, a Missouri Democrat, said during a U.S. Senate hearing here Tuesday.
The hearing, held by the Senate Judiciary Subcommittee on Crime and Terrorism, focused on finding ways to inspire campus sexual assault survivors to have more confidence in law enforcement so that they don’t, as McCaskill said, “take the default position that they’d be better off just pursuing the Title IX option.”
Panelists and senators stressed that such a decision should remain up to the victim, but said that too often survivors – either through discouragement from their college or their own disillusionment with law enforcement – think of Title IX, the federal anti-discrimination law that requires colleges to investigate campus sexual assaults, as their only option for finding justice.
“I am concerned that law enforcement is being marginalized when it comes to the crime of campus sexual assault,” Sen. Sheldon Whitehouse, a Rhode Island Democrat and the chairman of the subcommittee, said. “I’m concerned that the specter of flawed law enforcement overshadows the harm of marginalized law enforcement.”
Whitehouse said he hoped the hearing would “help inform” the work of senators, including McCaskill, who are fine-tuning the Campus Accountability and Safety Act introduced earlier this year. The bill requires every college to create a “memorandum of understanding” with local law enforcement. But some campus safety officials said such a requirement may not go far enough and places an unfair burden on colleges.
Establishing clear lines of communication between law enforcement agencies and campuses is important, but a “memorandum of understanding is not a panacea," said Kathy Zoner, chief of police at Cornell University and a panelist at the hearing.
“It can be helpful, but entering one isn’t always possible,” Zoner said, adding that some colleges must interact with multiple agencies with competing jurisdictions. “There’s no guarantee that local law enforcement will even cooperate with a memorandum of understanding."
Under the proposed legislation, institutions that don’t obtain a memorandum of understanding could be penalized up to 1 percent of the college’s operating budget, a sanction Zoner said is too aggressive for such a complicated process. Earlier in the hearing, Sen. Kirsten Gillibrand, a New York Democrat and co-sponsor of the bill, stood by the requirement. She said it was “shocking” that one didn’t already exist, and said such a requirement would “serve to flip the current incentives for colleges and universities that would rather sweep these reports under the rug.”
While the mandate does allow the U.S. Department of Education to waive the penalty if a college can prove it demonstrated a good-faith effort, Zoner said the legislation gives too much discretion to the department -- particularly as its Office for Civil Rights would get to keep whatever fine it imposed. There are other points of friction between the responsibilities of law enforcement and those of a college that complicate such a partnership, as well, panelists said.
McCaskill said the interactions were often “a complicated thicket” of issues. Campuses and law enforcement agencies use different burdens of proofs and standards of evidence. The length of the investigations vary greatly, with a criminal investigation often taking far longer than what the Education Department expects from colleges.
And the two kinds of investigations often have different end goals -- college adjudication processes under Title IX are about the safety, civil rights and well-being of a particular student, while criminal investigations and trials are about the prevention of further crimes and prosecution of those guilty of the crime. Because of that difference, said Peg Langhammer, executive director of Rhode Island’s sexual assault coalition Day One, “campus-based adjudication processes, as they stand now, don’t work.”
Too many students are found responsible for sexual assault, Langhammer said, only to transfer to another institution and assault again.
“Colleges alone are not competent enough to handle the investigation and prosecution of these cases, and nor should they be,” she said. “There must be integration between the two. The question is, how can we create a system where the victim’s choices are the priority and where the option of reporting is a viable one?”
One possible solution to that question could be the “Campus Choice Program” at Southern Oregon University, which both panelists and senators praised at the hearing. Campus Choice provides students with an opportunity to seek information and options through a confidential adviser who is well-trained in both the criminal justice system and Title IX. The adviser is exempt from the Title IX reporting process. The program also requires anyone who interviews a victim to be trained in “trauma-informed” interviewing techniques.
This all allows the process to move at a slower, more victim-focused pace, said Angela Fleischer, assistant director of student support and intervention for confidential advising at the university. If a student chooses to report the crime to law enforcement, which the university encourages, Fleischer accompanies the student through the entire criminal justice process. The student is encouraged to talk to the police, even if he or she doesn’t wish to pursue charges, which can at least provide law enforcement with details that can be helpful if the accused turns out to be a repeat offender.
More than three-quarters of the cases that pass through Southern Oregon’s confidential advising program now involve interaction with law enforcement, Fleischer said.
“Most of the students are now at least exploring that option and the police department has the name and information of these offenders,” she said. “Just giving information to law enforcement in the first place is highly valuable.”