University of North Carolina’s Response to Complaints of Sexual Assault

The news that the University of North Carolina has allegedly mishandled sexual assault complaints is very troubling. A recent news report states that one student who reported being sexually assaulted by another student says she was pressured by a university administrator not to make a criminal complaint, leaving her with the option of having a student “honor court” deal with the matter.

She says the “honor court” found the assailant not guilty, and that as a result of making her complaint, she has now been charged with an honor code violation.  A complaint has now been filed by several women against the university for allegedly creating a “hostile environment” for students who report having been sexually assaulted.

The university has retained an expert  who appears to endorse the idea that the university is in a position to adjudicate sexual assault complaints by students. I disagree, for several reasons.

1. I don’t believe any university has all the tools that law enforcement agencies employ when investigating a reported rape. Consider a hypothetical case in which a student reports being raped by an intruder in her dorm room, but the person she identifies as the assailant denies ever being in her room or ever having sex with her. Is the university in a position to gather appropriate samples of DNA material, and conduct the proper testing? Can it carry out finger print analyses? Does it have trained personnel to conduct a forensic analysis of hair, fiber or human tissue found on the victim or the alleged assailant? While the typical university may be able to adjudicate many kinds of student misconduct (e.g., cheating on exams), adjudicating serious crimes such as sexual assault is another matter.

2. I believe that any university has a conflict of interest that should prevent it from attempting to adjudicate sexual assault complaints. Consider a hypothetical situation in which a female student reports being assaulted at night in an unlit and unguarded campus parking garage. It is quite possible she might have a claim for damages against the University for its negligence in providing a location that it knew or should have known would render female students vulnerable to attack. Given the possibility of a substantial claim against the university anytime a student is assaulted on campus, the university would have a strong monetary interest in reaching the conclusion that no assault occurred; e.g., that any contact between the female student and the alleged assailant was consensual.

3. Only our courts are in a position to mete out punishment in a form that will protect society. All a university can do is suspend or expel the perpetrator (assuming he/she is another student), a step that provides little (if any) protection to anyone. In contrast, our courts can incarcerate the perpetrator, and in some cases can have the perpetrator committed to an institution indefinitely. They can also require the perpetrator to register as a sex offender, thus providing a warning to others in the community.

The expert retained by the University of North Carolina has been quoted as saying that women who report having been sexually assaulted are informed that the “criminal option” is available to them. In my opinion, it is grossly inadequate merely to inform a woman who has been raped that she has the option of contacting law enforcement authorities. Instead, rape victims should be encouraged to report. By making a report, the victim sets in motion a process that can and should result in greater safety for herself and for other women in the community.

Encouragement to report should be accompanied by the social support a woman ordinarily needs to take this step. There is abundant evidence that women are generally very reluctant to report being raped for fear that they will not be believed, or that they will suffer negative consequences for having made the report; see the article I co-authored with Clark Ashworth, 1981.

A similar reluctance to report is found in cases of sexual harassment in the workplace; see my article in the Labor Lawyer, 2000.   I doubt whether telling a rape victim that the “criminal option” is available to her is likely to do anything to assuage her fears about making a report to the authorities.

Stated differently, the female college student who has been raped already knows she can call the police. What she needs is encouragement and support in taking this step, not the suggestion that there is another way to “adjudicate” the matter; e.g., by turning the matter over to a student honor court. This latter route can easily be presented to the victim in a way that sounds very appealing. However, taking this route is not in her best interest, nor is it in the best interest of other women in the community.

Finally, the expert retained by the University of North Carolina has been quoted as saying her job is to “engage the community in a conversation” about the problem.  In my opinion, having a “conversation” about female students being sexually assaulted on campus minimizes the problem because it puts rape into the same category as anything else we have a conversation about; e.g., the weather. It would be more helpful to the students if an expert were retained to (a) determine the adequacy of the university’s response to complaints of sexual assault, (b) identify the cause(s) of any inadequacy, (c) identify the ways the university could improve its response to complaints of sexual assault, (d) identify steps that should be taken to improve student safety from sexual assault on campus and (e) provide guidance to the university as to how and when each step should be taken.

Such an expert, of course, would have be willing to offer opinions the University might not wish to hear; e.g., the opinions might require the university to change its policies or to make significant expenditures. Offering opinions of this type requires an attitude of objectivity which, as shown in my program, is an essential quality of any retained expert.

Shirley Feldman-Summers, Ph.D.

March 13, 2013

 

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