Alec Ward | Call the cops

Talking Backward | Penn should sue the government for the right to treat rape as a crime

By Alec Ward 02/24/15 12:55am

Last Wednesday, a group of faculty at Penn Law School published an open letter criticizing the University’s new procedures for investigating and adjudicating allegations of sexual violence on campus. The letter claims that the new policies infringe upon the due process and fundamental fairness rights of students facing accusations of sexual misconduct in the system which the new policy creates.

The professors’ concerns are well-reasoned and powerfully presented. The letter did not, however, go so far as to suggest that the University should stop attempting to handle allegations of sexual assault — a heinous violent crime — within a campus disciplinary system originally intended to address academic integrity violations and non-criminal conduct infractions.

The University isn’t at immediate liberty to do this, however. Since it accepts research funding from the federal government, Penn is subject to regulation by the Department of Education, specifically the Office for Civil Rights. Since 2011, OCR has been vigorously enforcing a set of “policy guidelines” which require federally-funded colleges to handle complaints of sexual assault on-campus; that is, they forbid colleges from handing cases off to law enforcement for resolution.

However, the legal status of these requirements is dubious. The OCR “guidelines” were put in place without being submitted for public notice and comment before taking effect, which is required for all “substantive” changes in regulation by the 1946 Administrative Procedure Act. OCR never submitted them, making it highly doubtful that these regulations would stand up in court.

Penn should use this failure as grounds upon which to seek an injunction against the enforcement of these regulations, which mandate a system which is both deeply flawed in theory and in practice and has an abominably bad record at delivering justice for students. From a theoretical angle, requiring that campus disciplinary systems adjudicate sexual assault forces universities to effectively perform in-house criminal investigations without the expertise, resources or procedural safeguards which come along with the criminal justice system. Even if we do trust the processes which universities employ — and experience tells us we shouldn’t — university disciplinary processes are toothless to adequately remedy a serious crime like sexual assault. Even when such systems work perfectly, a rapist remains free to walk the streets, potentially victimizing others. Especially with recent research suggesting that a significant portion of those who commit sexual assault are repeat offenders, expulsion utterly fails to serve society’s public safety interests or victims’ retributive interests where violent crime is concerned.

In practice, campus proceedings have repeatedly managed to mistreat both complainants and respondents, depending on the school. Even as we continue to hear stories of assaults hushed up by institutions eager to protect their reputations and sports teams, colleges have a lousy record of taking sufficient steps to ensure that innocent students aren’t found guilty. In addition to law professors at Penn and Harvard, voices on all sides of the political spectrum have expressed alarm at the lack of due process which the procedures mandated and recommended by OCR afford to respondents. And their concerns seem to bear out, as there are a number of cases in which either courts found that accused students were treated unfairly in campus proceedings or in which universities — including our neighbors at Swarthmore and Saint Joe’s — settled lawsuits with students claiming to have been deprived of due process in campus sexual assault investigations.

Advocates for on-campus adjudication often claim that it’s necessary because police tend to mishandle rape cases. However, to my mind, that’s an argument for reforming police practices, not for creating a seperate, “better” justice system open only to those lucky enough to attend college. To be sure, colleges have a role to play in such reforms in addition to taking steps to prevent sexual assault on their campuses and to provide support to victims. As a school with its own private police force, Penn is uniquely positioned to take the lead in developing ways for both victims and the accused to get justice regardless of student status.

By suing the government, Penn could give itself room to begin working on a criminal justice-based response policy to campus sexual assault which could at once put rapists away for real while ensuring accused students are treated fairly.

ALEC WARD is a College sophomore from Washington, D.C., studying history. His email address is alecward@sas.upenn.edu. “Talking Backward” usually appears every Wednesday.

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