Should schools be required to report rape? Some victim advocates say no

The Board of Visitors met November 25 and voted unanimously to support a “zero-tolerance policy” for sexual assault at UVA. Photo: Dan Addison/UVA University Communications The Board of Visitors met November 25 and voted unanimously to support a “zero-tolerance policy” for sexual assault at UVA. Photo: Dan Addison/UVA University Communications

Two weeks after the publication of a Rolling Stone story alleging a brutal rape and a culture of covering up sexual assault at UVA rocked the community, officials are responding to angry calls for action with proposals: State lawmakers are rolling out plans for legislation that would require school administrators to report any evidence of a rape to police, and the University’s Board of Visitors last week voted to support a “zero-tolerance policy” on sexual assault.

But some experts and advocates say there are no easy ways to curb and correct the high rate of sexual assault on college campuses, and such rules may end up doing more harm than good.

Requirements to report

Delegate Rob Bell, a Republican former prosecutor and UVA alumnus who represents part of Albemarle County, responded to the Rolling Stone article with a proposal announced Monday. He and two other Republican alumni delegates, Dave Albo and Todd Gilbert, want to see a law that makes it mandatory for “any college administrator who receives evidence of a violent felony by or against a student” to report that evidence to local police. They’re also proposing an expansion of existing rules governing cross-reporting of incidents between campus police and local jurisdictions.

Charlottesville representative and Democratic leader of the House of Delegates David Toscano has drafted a similar but slightly narrower bill that would make it mandatory to report only felonious sexual assaults.

Jackie, the anonymous subject of the Rolling Stone story, described a crime punishable by five years to life in prison, said Bell. “While school officials are great at addressing school issues, we believe that violent crimes should be addressed by the criminal justice system, and that’s especially true with sexual assault. The biological evidence disappears very quickly. If it’s not collected as soon as possible, it could make it harder for a victim to push for prosecution later if they decide they want to.”

Bell said it should be a trained criminal justice professional who walks a survivor of sexual assault through her options, including whether to get a rape kit, which is crucial if a victim later decides to press charges.

“We really think that’s a discussion, given the gravity of the issue, that should be addressed through the people who do this for a living,” he said. Even if a victim chooses not to pursue a criminal case, “it would at least alert law enforcement that it happened.”

“I understand how difficult it is for victims to report,” said Toscano. “They feel they’re going to be victimized again, or they don’t want to get people in trouble. I think one of the jobs we have to do is educate young people about the fact that a lot of these folks who are committing these offenses do it more than once, and for the sake of their fellow students and community members, they need to report these offenses.”

But Laura Dunn, an attorney, sexual assault survivor and executive director of advocacy group SurvJustice, called the proposed legislation patronizing and counterproductive.

“We have mandatory reporting laws for children who are minors and are incapable of knowing how to seek help when they’ve been harmed,” she said. “Adult women are not in that category.”

Dunn said many other advocates firmly oppose mandatory reporting by school administrators because they believe it will deter victims from coming forward at all. The survivors of campus sexual assault she’s met are smart, she said. They are well aware of the dismal success rate of rape prosecutions, and many weighed their options and decided against the courts. Forcing college administrators to turn over those victims’ names and claims to police would rob them of that choice.

“I get the idea,” Dunn said. “We’re disgusted that schools aren’t doing more to stop sexual violence.” And she thinks it’s clear that if UVA officials heard and believed Jackie’s story and did nothing, then they violated Title IX, which would have required them to take some sort of action to protect the safety of the community.

“What you can’t do, though,” said Dunn, “is you can’t make Jackie use the system.”

She added that legislators’ energy would be better spent strengthening Virginia’s consent laws, which would address what she called the state’s “horrible definition of sexual assault.”

“If they actually cared about public safety, they would be fixing their laws,” she said.

Becky Weybright, the executive director of Charlottesville’s Sexual Assault Resource Agency, said concerns that mandating police involvement will discourage reporting are well-founded.

“Sexual assault and rape [are] so highly underreported as it is,” she said. “Oftentimes victims feel a lot of blame, that they did something to cause this to happen. Sometimes going through the criminal justice system will make people feel they’ve been revictimized.”

S. Daniel Carter, an advocate for sexual assault policy reform and the director of the 32 National Campus Safety Initiative, said the kind of mandatory reporting laws Bell and Toscano are proposing would be inconsistent with the spirit, if not the letter, of last year’s Campus SaVE Act, a major reform law that aimed to standardize and improve colleges’ sexual assault policies.

The act protects students from being forced by their own schools to report to police, Carter said, but it doesn’t prohibit a rule saying administrators have to.

The issue of addressing campus sexual assault puts schools in a very difficult position, he acknowledged. “They have an obligation to protect other students, but they recognize if they force certain actions, that will have a chilling effect on reporting. It’s a very close balancing act.”

The new legislation would take away some of that uncertainty, and Toscano said people want to see some kind of action.

“What we’re doing right now is not working in the way people want it to,” he said.

Zero tolerance?

When the Board of Visitors at Mr. Jefferson’s U unanimously approved a zero-tolerance policy for sexual assault November 25, it seemed to make sense for a university with an honor code that boots out liars, cheaters and thieves, but has never expelled a rapist.

However, some critics and experts in sexual assault say zero-tolerance policies are not a panacea for rape on college campuses.

The Cavalier Daily has published two editorials warning that a single sanction for sexual assault could deter victims from reporting their attacks. Dean Nicole Eramo, chair of the Sexual Misconduct Board, said as much in her interview with WUVA’s Catherine Valentine in September.

Eramo pointed out that the Honor Code’s single sanction in itself was controversial. “I am afraid if we only have a single sanction, that will hurt our reporting for cases of sexual misconduct,” she said. “I think you would be surprised at the number of survivors I’ve worked with who don’t even want to file a complaint. They don’t want to get the accused in trouble.”

John Whitehead at the Rutherford Institute has been fighting zero-tolerance policies run amok since the 1990s. He points to cases such as 6-year-old Hunter Yelton in Colorado, who was suspended for kissing a girl on the hand, and the 9-year-old Gastonia, North Carolina boy who got in trouble for sexual harassment when he told his teacher she was cute.

“They should be sure to define exactly what they’re talking about,” said Whitehead of UVA’s zero-tolerance resolution. The phrase “sexual assault” in itself is ambiguous, he said, and there’s a difference between sexual battery—unwanted touching—and rape.

“They’ve got to make sure they don’t include silly behavior after a few vodkas. You can’t leave [the policy] up to interpretation,” stressed Whitehead. “It’s got to be clearly defined.”

Ashley Brown, president of One Less, a UVA sexual assault survivor group that includes Rolling Stone story subject Jackie among its members, said she wants a policy that fosters a safe space for reporting in a respectful and empathetic manner and supports survivors. A zero-tolerance policy “could deter people from reporting if the punishment is all or nothing, so to speak,” she said. “We have to ensure that we balance student safety with practical knowledge of survivor behavior.”

Speaking personally and not for One Less, Brown said, “I think groping falls more under the umbrella of sexual misconduct, and expulsion might be a little severe.” Everyone brought up on charges should be required to attend remedial disciplinary counseling, she said. “If the policy simply releases perpetrators into the world without any correction, that’s just passing the buck,” she said.

“Our current policy encompasses ‘unwanted groping’ as a form of non-consensual sexual contact,” said UVA spokesperson Anthony de Bruyn. “We encourage students to report any such contact ASAP to the police and University Office of the Dean of Students.”

At the November 25 Board of Visitors meeting, former rector Helen Dragas proposed the zero-tolerance motion, and it passed unanimously.

“It’s important we get it right,” said Board of Visitors member Frank Atkinson.

The board will take up the issue again at a December meeting.

Board members contacted by C-VILLE Weekly declined to comment on what behavior they think should fall under the zero-tolerance policy.

“The details of the approach and how it is articulated and implemented will be refined in the near term in collaboration with the University administration,” said du Bruyn.

There is precedent for tighter sanctions for those found guilty of sexual assault in campus adjudications, according to advocates. Laura Dunn pointed to the State University of New York, which on December 2 announced a new policy that mandates suspension or expulsion for violent assaults. Dunn said it could become a national model. “I think because suspension is still an option, it will not discourage victims from coming forward,” she said.

Campus safety expert Daniel Carter said people will have to wait and see what UVA proposes.

“I don’t think we know what this means yet,” said Carter. “The devil is in the details.

“The concern I have,” he added, “is that there are some victims who quite frankly do not want their assailants
removed.”—Graelyn Brashear and Lisa Provence

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