Rape on Campus Should be a Never Event

The Rolling Stone article, "A Rape on Campus" should be a must read for every one who attends college, plans to attend college, or has children or loved ones on a college campus, especially one with a significant fraternity presence. UVa is my alma mater for two of my degrees, but this story reminded me more of my experience as an undergraduate at Bucknell University, a small, private, liberal arts university in Pennsylvania which is also dominated by fraternity culture. My experience there with sexual assault was not as a victim, but as a member of one of the pseudo-legal sexual assault boards, which I believe contribute to this problem of pervasive sexual assaults on college campuses. In the course of my time at Bucknell I was intimately involved with the intramural justice system, such as it was, and over the course of about 2 years I figured out what a tragedy such systems are, both for the victims of crime but also for the accused and for our rape culture as a whole. These systems do not serve any recognizable form of justice, and instead only exist to create an illusion of responsiveness to serious crime on campus by universities, while doing a disservice to all parties involved, and the schools know it. They exist to sweep these problems under the rug, and hide from site the ugly problems of violence, rape culture, privilege and racism from public view.

My experience with our campus judicial system started when I was a sophomore. I had just finished a summer internship working as a criminal investigator with the Public Defenders Office in Washington DC, a life-altering experience that involved investigating crimes, finding and interviewing witnesses, serving subpoenas, and testifying in court on behalf of juvenile offenders in one of our most violent cities. Ironically, within my first week back on campus I was falsely-accused of misconduct, after I reacted quite rudely to a RA who showed up at my door and, seemingly out of the blue, accused me of drinking in public and running from her when she called after me. I had been sitting in my room with several friends for the last hour so I reacted brusquely, called her an idiot, and slammed the door in her face. It turned out to be a case of mistaken identity, the person who had been seen had fled from her through our group apartment, in the back door and out the front, and I looked enough like him that the RA was understandably confused. My summer internship had prepared me incredibly well to deal with such officious authority figures, I wasn't going to be hassled by some busybody who had no legal authority to harass me in my domicile. How naive I was.

As a result I got to experience the judicial board of my school first hand, first in a sit-down meeting with a dean at which I was threatened and bullied. I was told that I would face serious disciplinary action, calls to my parents etc, and a hearing in front of a judicial board at which I would receive no counsel and have to defend myself from my accuser in front of a group of faculty and peers. Or I could just make things easy and admit to drinking in public and running from the RA and face a minor disciplinary action which they would decide after I confessed! I refused. I told them I would do no such thing, I had already told my parents about the non-incident, had letters from multiple witnesses that proved I was not the guilty party and I wasn't going to be bullied into telling a lie (my ace up my sleeve was the person who actually ran from the RA was willing to come forward if they called my bluff). Amazingly it worked. But my curiosity was piqued. What was this judicial system run within my university? Why did my dean make it sound like it was just a rubber stamp to punish those that refused to admit to any accusation from the administration? What crazy system of rules had we signed up for without a thought when we matriculated to this university?

It turns out that at most universities there are judicial systems, variably composed of faculty, administrators, and students who are responsible for hearing accusations of everything from academic violations such as cheating (which seems quite reasonable) to vandalism, drug crimes (woah), violent crimes, and yes, even sexual assault (insane). Using connections with friends on student government I got appointed to the judicial board of my school, with an eye for standing up for those, like me, who were falsely-accused and might be railroaded into falsely confessing. I was going to defend the innocent and be an obstruction to the rubber-stamp justice system of my school.

Instead my experience showed me that no one is safe from the biases inherent in serving on such panels, and there is no way for either the victims or the accusers to get justice from these fundamentally-flawed systems.

Take as an example, a student accused of smoking weed in their room. A complaint could be filed with as little as the detection of the odor of marijuana by an RA, without any physical evidence of possession, drug tests demonstrating intoxication, etc. A student could then end up in front of a dean, and after refusing to comply with whatever arbitrary discipline the dean suggests they end up in front of their pet rubber-stamp judicial committee. The committee is hand-picked by the dean and includes faculty members and students, if I recall correctly, faculty outnumbered the students on our boards. The hearing consists of a student, who may bring one person with them (who may not speak), in front of a board of their peers and faculty, and whoever accuses them of wrongdoing. The proceedings are loosely-based on court proceedings with the usual opening statements, testimony, presentation of any relevant evidence, cross by the accused, and closing statements. The evidence required to secure a disciplinary action is a "preponderance of evidence", a lower-level of proof usually reserved for civil liability cases often being applied to criminal accusations with significant risk to the student as they may be expelled, lose their scholarships, student aid or even forfeit their tuition. Imagine an 18-year-old trying to defend himself from a flimsy accusation of drug use, in the face of that panel, with those risks, with no counsel, no knowledge of rules of evidence, facing their professors and accuser all alone in a room with no standardization of disciplinary action (expulsion was basically always on the table). It was absurd. It was unfair. It was, in the words of one of my favorite professors who was also a lawyer, a "kangaroo court".

Now let us raise the stakes. After a year serving on this kangaroo court, engaging in as much juror nullification as I could when the charges were nonsense, or victimless, I was, amazingly, asked to serve on the sexual assault board. Again I was stunned to learn about yet another parallel judicial system within our university that had the audacity to sit in judgment of the most serious and devastating crimes imaginable. Forgive me, this was around 1997, the internet was in its infancy, we just weren't as as savvy as we are now. This board was shrouded in even more secrecy. We had to swear on penalty of expulsion that we would not share details of the cases. The format of the board was similar with students and faculty deciding on guilt or innocence based upon a preponderance of evidence, but the mechanics were even more bizarre. The victim would tell their story, and the accused could respond. There was no cross-examination exactly. The accused could pass questions to the sexual assault board which would decide if they were appropriate to ask the accuser, with the goal of preventing a potential rapist from bullying or shaming his victim. Most of the rules were designed to make it as safe of a place as possible for the victim, and while admirable, made the process even more arbitrary.

I learned two things that year serving on this board. One, my university had a problem with rape. Two, my university was hiding it.

We were made aware rape was a problem on college campuses from day one, we were all introduced to it during orientation when the ugly statistics were presented to the entire freshman class. The stats seemed impossible to believe coming from high schools where everyone knew each other, often for our whole lives, that the same kind of people we grew up with would be the victims and perpetrators of such crimes at such a high rate. The studies agree, about 20% of women will be victims of sexual assault during their time at college. After a year in college I had a friend who was raped after a fraternity party (at another school). The women I was friends with at Bucknell would tell me about which fraternities on campus were the rape fraternities. In a small town in central Pennsylvania, in a formerly dry county, there is no alternative social scene aside from the fraternities, as a result, your choices were spending nights in doing laundry or going to whichever house was having a party that weekend. Before parties at these houses my friends made pacts not to let each other get separated. I took their word for it that it was a problem. It may have helped that I was as an independent, an outsider. At a school where over half the population was Greek, I had to forgo regular access to parties and alcohol, and I was clueless as to what happened at most of the houses other than the one house where a majority of my friends rushed, and even there I was only vaguely aware of some unpleasant hazing rituals as a requirement for entry. My whole life I have been constitutionally incapable of participating in mindless group activity, it makes me anxious. Our first week at school we were led around by mindlessly-cheerful "OAs", or Orientation Advisors, who would lead us as a group in a series of chants involving singing and clapping. I ran away and hid until it was over.

From experiences like these it was clear to me from early on in my college career, rape was common. It was even known which houses were rape houses. How is it possible that we didn't object? Why did we tolerate it? We were young. We didn't know it could be any other way, and on a college campus with all of our peers tolerating it it was just normal. Hey, don't be alone at that house, you'll get raped. Gee whiz. And from the Rolling Stone article it looks like little has changed:

The women rattle off which one is known as the "roofie frat," where supposedly four girls have been drugged and raped, and at which house a friend had a recent "bad experience," the Wahoo euphemism for sexual assault. Studies have shown that fraternity men are three times as likely to commit rape, and a spate of recent high-profile cases illustrates the dangers that can lurk at frat parties, like a University of Wisconsin-Milwaukee frat accused of using color-coded hand stamps as a signal to roofie their guests, and this fall's suspension of Brown University's chapter of Phi Kappa Psi – of all fraternities – after a partygoer tested positive for the date-rape drug GHB. Presumably, the UVA freshmen wobbling around us are oblivious to any specific hazards along Rugby Road; having just arrived on campus, they can hardly tell one fraternity from another. As we pass another frat house, one of my guides offers, "I know a girl who got assaulted there."

"I do too!" says her friend in mock-excitement. "That makes two! Yay!"

This is chillingly-familiar. Also familiar was the parallel justice of the Sexual Misconduct Board:

When Jackie finished talking, Eramo comforted her, then calmly laid out her options. If Jackie wished, she could file a criminal complaint with police. Or, if Jackie preferred to keep the matter within the university, she had two choices. She could file a complaint with the school's Sexual Misconduct Board, to be decided in a "formal resolution" with a jury of students and faculty, and a dean as judge. Or Jackie could choose an "informal resolution," in which Jackie could simply face her attackers in Eramo's presence and tell them how she felt; Eramo could then issue a directive to the men, such as suggesting counseling. Eramo presented each option to Jackie neutrally, giving each equal weight. She assured Jackie there was no pressure – whatever happened next was entirely her choice.

Like many schools, UVA has taken to emphasizing that in matters of sexual assault, it caters to victim choice. "If students feel that we are forcing them into a criminal or disciplinary process that they don't want to be part of, frankly, we'd be concerned that we would get fewer reports," says associate VP for student affairs Susan Davis. Which in theory makes sense: Being forced into an unwanted choice is a sensitive point for the victims. But in practice, that utter lack of guidance can be counterproductive to a 19-year-old so traumatized as Jackie was that she was contemplating suicide. Setting aside for a moment the absurdity of a school offering to handle the investigation and adjudication of a felony sex crime – something Title IX requires, but which no university on Earth is equipped to do – the sheer menu of choices, paired with the reassurance that any choice is the right one, often has the end result of coddling the victim into doing nothing.

"This is an alarming trend that I'm seeing on campuses," says Laura Dunn of the advocacy group SurvJustice. "Schools are assigning people to victims who are pretending, or even thinking, they're on the victim's side, when they're actually discouraging and silencing them. Advocates who survivors love are part of the system that is failing to address sexual violence."

This is exactly correct. As long as the schools have a mechanism to deal with these crimes internally, they will not encourage women to report their assailants to police and engage the courts where cases such as these belong. And indeed this was my experience at Bucknell. As long as schools can discourage reporting, and shroud their process in secrecy, the sources of rape on campus will be hidden and protected. And as I learned, the secrecy of these systems also can be used to silence criticism and dissent.

As a member of our parallel legal system I heard about each of the cases that was to be adjudicated before our system, once I had to recuse myself as I knew one of the parties, and as I gained more experience I also noticed something disturbing. Not one of the cases brought before the board involved a fraternity or a fraternity brother, despite the majority of our students being greek. All of the cases involved independent minority students, despite my university's notoriously non-diverse campus. In other words, on a campus where my girlfriends would describe a frat house as "rapey", the only cases I saw being adjudicated were against independent, minority students who represented < 5% of the population.

I had a small sample size, unfortunately. It was only my own personal experience. Maybe that year was a fluke? I can't be sure.  I began to see the board as not just hopelessly flawed in dealing with what should be a criminal matter, but worse, implemented in such a way as to mask the criminality of the privileged students on campus.   The sexual assault board took the worst features of our criminal justice system, which often sees fit to punish minorities more frequently, and more harshly, and combined it with the worst rules of evidence from the civil justice system, all while shrouding the process in secrecy. But soon I was going to graduate, and move on, and fighting with the administration and board seemed pretty pointless as my next goal, getting into medical school, loomed larger, and fights with the administration would not help me on that path.

What should be the solution to this system that our schools have cobbled together from a tradition of internal disciplinary processes, mashed together with well-intentioned but obtuse quasi-legal processes? We know what the statistics are, 25% of women are sexually assaulted but only a tiny fraction bring legal action against their attacker. We know that men that rape will usually rape more than once. How can we say we are serving the interests of our students when we hide our own statistics, hide the locations and sources of rape, and then passively discourage reporting of rapists(who will rape again) with this paralysis of choice? It should be clear, university sexual assault boards do not serve the interests of victims of sexual assault, they serve the interests of the university. In doing so, they obscure the facts, they minimize rape by downgrading it from a felony to "misconduct", and they create an alternative path of punishment that allows rapists to escape real criminal justice so they can victimize more women. They should be universally dismantled.

Reporting of rape does not have to disclose details of the victim to be effective. Details of the crime and the victim can be protected while appropriately reporting, collecting data, and informing and protecting the public from this crime. Let's take an example from medicine. There are events in medicine that we refer to as "never events." These are events that should never happen, yet they do, because of human error, systems errors, and sometimes by terrible luck. But if appropriate systems and protections are in place we believe we can make them vanishingly rare. They include things like operating on the wrong patient, or the wrong body part, transfusing the wrong blood type, or switching an infant. Interestingly, the list of never events includes sexual victimization of patients under a hospital's care. When a never event occurs, hospitals are required to report it, and an investigation will occur to determine exactly where the system broke down, and where the error occurred so that it may never happen again.  Yes it's embarrassing to the hospital when such things occur, but it's actually reassuring to the public to see that when they do occur the response is serious, and there is accountability and change in practice as a result.

If we were as serious about rape as we are about not leaving a sponge behind in a patient, when such an event as this occurred it would result in an immediate report to an independent auditor who would collect data on these events. Without disclosing details of the victim, just as we do not need to disclose details of the patient, the report would be public with regard to the location and type of incident and non-identifying details. Disclosing the assault to the police could still be at the discretion of the victim, but we must standardize the advice to victims so that parties with conflicts of interest - like school administrators - can't protect their institution by discouraging criminal prosecution or public disclosure. An attempt at a system like this was made once with the Clery Act, however cases are obviously slipping through the cracks. If students don't file an official report, or are discouraged from reporting, the numbers will always appear far lower than the reality. Here is Bucknell's report for the last 3 years. In that time about 32 forcible sexual assaults are recorded and the data only really narrows it down to "on campus" or "off campus". How is that helpful? Given the known rates of sexual assault how can we even consider this to be remotely accurate? We would expect well over 100 assaults to occur per year, this suggests less than 10% are being reported, and in the vaguest way possible, as "on campus" includes fraternities for Bucknell.  UVA'S Clery act reporting is even more pathetic with as many as 20,000 undergrad and grad students on campus they report 32 rapes last year.  Clery Act reporting is a joke. There should be a map, with a point showing where each assault is reported to have occurred. If assaults cluster in an area, such as a particular house it should be shut down.

The only people that fear data collection and study are crooks and cranks. Just look at how the NRA tries to suppress research into gun violence, or how Republicans try prevent agencies like the DOD or EPA from performing or benefiting from scientific research into climate change. Their motives are obvious, they know the data are damning. If you believe, like Gawker that frats should be shut down, this is unlikely to happen and will likely just result in mindless push-back. A more modest proposal is to force the collection of high quality data, requiring colleges to record and report all allegations of rape, whether or not they result in police reports or criminal prosecution so they can't use internal mechanisms to avoid Clery act reporting. Reports should be specific and tied to geographical presentation of the data about sources of sexual assault on and off campus. If your frat is the rape hotspot on campus it gets investigated by external auditors, and if it's negligent or complicit it gets shut down. The goal will be to identify the sources of rape on campus. Rape will likely never be as rare as "never events" given the complexity of the crime but we don't act as a society as though we're truly interested in solving the problem. We won't be able to reduce the frequency of rapes on campus as long as our process for dealing with it only exists to protect the institutional reputation and ignores the interests of victims.  What "never events" have taught us in medicine is that being transparent about events that we are embarrassed by isn't as bad for the institution as sweeping such incidents under the rug.  Until we study exactly how, where, why it happens, and make that data public no one will be empowered to enact the changes necessary reduce the frequency of rape on college campuses.