Why Rapes Need to be Reported to the Police, Not the SFHB
By Paul Lagarde
In recent months, the issue of sexual assault on college campuses has been widely discussed. The now-discredited Rolling Stone article on UVa touched a nerve for many Americans, and indeed, many college students. For many at W&L, just a short hour away from Charlottesville, the story hit close to home, igniting discussions on sexual assault, fraternity culture, and the university’s role in all of this.
When it comes to sexual assault, W&L is at a crossroads. A former student is currently suing Washington and Lee, claiming he was unjustly found guilty of rape by the Student-Faculty Hearing Board. The Department of Education’s Office of Civil Rights is investigating a female student’s complaint that the University unfairly discriminated against her because of her gender in a grievance of sexual assault last spring. As Trustees craft a new sexual misconduct policy to bring W&L into Title IX compliance, it will be important that they consider the events of the past year and the failings that come when universities handle sexual assault cases on their own.
In order to understand sexual misconduct policy at W&L, one ought to start with the formation of the SFHB in 1992, upon recommendation from the Executive Committee, by the Board of Trustees. Rape then, and now, is considered a potential honor violation, as it violates the trust of the community. The main reason the EC chose not to hear these cases is because it is a single-sanction body, and since sexual misconduct covers a wide range of possibilities, the single sanction of expulsion may not fit the crime. That is to say, while some of the lesser offenses such as inappropriate comments or harassment may not offend a sense of honor, they still deserve some form of sanction, which the EC is unable to provide. Additionally, the EC cannot guarantee confidentiality for the accuser, as the accused student always has the right to appeal a guilty verdict to a Student Body Open Hearing. Accordingly, the SFHB was created in 1992 as a way for students to work together with faculty to properly adjudicate these matters.
However, recent events should give one pause about the practical wisdom of such a board. The SFHB is not unique. One simply has to perform a quick Google search to find similar bodies on many of America’s campuses. In fact, any school that receives any amount of federal funding, even if only for a summer research grant, is required to be in compliance with Title IX, and thus, required to have such a board. It seems then that these sexual misconduct boards are here to stay. However, like nearly any federal government initiative, this one has its flaws.
For one, the federal government mandates an extremely low standard of guilt for these boards. Under the “preponderance of evidence” standard that W&L is legally required to follow, the board only has to be more certain than not that an individual is guilty of sexual misconduct. In other words, the board can only be 51 percent certain that a student is guilty of rape, and yet due to federal policy, that student deserves to be expelled. In contrast, the Executive Committee must be certain of a student’s guilt beyond all reasonable doubt. There are few matters with more gray area than sexual assault, and often times, the only evidence in these cases is personal testimony from the complainant and the accused. With these decisions many times coming down to “he said, she said”, it seems misguided to hand down life-changing punishment with such a low bar for guilt. In most areas of life, 51 percent won't cut it.
That is not the biggest problem with the SFHB and similar boards however. The biggest problem is the fact that universities consider them a viable substitute for legal action, when in reality, the two are not even on the same level. Rape is a violent crime, and it should be reported to law enforcement, regardless of any university action. A rapist does not deserve to be simply kicked out of school—he deserves to be jailed. We would never think of reporting a murder to Washington and Lee Public Safety and adjudicating it through the SJC, so why should this be any different?
Police are fundamentally better equipped to handle an investigation than university administrators if the purpose of the investigation is to uncover truth. Police can test for DNA evidence of rape, but more importantly, police officers have made a career (quite literally) out of investigating and prosecuting criminal matters, unlike, say, some random Women and Gender Studies professor. Additionally, law enforcement does not have a conflict of interest in the case—university administrators do. Though Sabrina Erderly’s article was based on lies and deception, there were grains of truth embedded throughout. The fact that UVa has never dismissed a student for rape is astounding and mind boggling. The only reasonable explanation is that the university did not want to look bad by presenting damning, but accurate, statistics to prospective students.
In recent months, there has been discussion at a national level about making universities mandatory reporters of sexual assault to law enforcement, essentially repealing the Title IX provision that forbids schools from reporting to police without the express permission of the accusing student. Some, like New York governor Andrew Cuomo (D) have tried to combat the issue by encouraging students to report sexual assault to police on their own, according to an article by New York Daily News.
“If someone gets shot on campus, that’s not an academic matter,” Cuomo stated, as he unveiled his “Enough is Enough” campaign on February 25. “But when a woman says she is raped, why is that any less of a crime? And who are you to say, well that’s not as serious as another type of criminal offense.”
Advocates for internal university handling of these cases have long stressed that women are more likely to report to school officials than law enforcement, and there is some truth to that. However, instead of subverting the police, perhaps it might be more worthwhile to try to make law enforcement policy more accommodating to rape victims, which will then encourage them to come forward in greater numbers. A retooling of police practice when it comes to sexual assault will serve universities, and society as a whole, better in the long run than the continuation of failing university policies.
Even with Washington and Lee’s supposedly welcoming policies, there have not been many reports of sexual misconduct to university authorities anyway. Since the start of the 2012 academic year, there have only been 6 cases heard by the SFHB.
Reporting a case of sexual assault to the police would be an incredibly difficult thing to do. Perhaps the hardest thing a woman would ever have to do. But it would be a brave thing to do. If an individual is truly guilty of rape, that person deserves to be jailed and on public record as a sexual offender for the rest of his life—not just expelled from school. By reporting cases to the proper authorities, women can ensure true justice, and in doing so, possibly save others in the path of a sexual predator.
According to Al-jazeera America, serial offenders commit 9 out of 10 rapes on college campuses. University hearing boards, including Washington and Lee’s SFHB, are not getting the job done. They offer phony solutions to serious problems, mocking justice in the process. It does not have to be this way. This problem is a fixable one, and the solution is rooted in humility, in realizing that a university cannot fix every problem, in handing the task over to those charged with protecting and serving local communities.
If Washington and Lee administrators and Trustees do not recognize the flaws with the school’s approach to sexual misconduct, then it is up to the students to ensure that we, the ones who these policies are supposed to protect, benefit from it. Ideally, no sexual assault would occur at Washington and Lee, a place which prides itself on honor, integrity, and individual responsibility. Reporting rapes to police will not be easy, but in the end, everyone, not just our university, but others in the greater society, will benefit from it. W&L has a real chance here not to do the easy thing, but to do the right thing, and hold perpetrators of crimes accountable for their actions in a court of law, not a panel of of students and professors. It's time to start taking rape seriously in Lexington.