Will climate change come soon to college campuses? A Coalition of Diverse Bar Groups Hosts a Historic Symposium on Emerging Law and Other Interventions to Address the Ongoing Scourge Of Sexual Assault on College Campuses
This past November 6, an incredible all-day Symposium on Sexual Assaults on Campus took place at Chicago’s School of the Art Institute, preceded the previous evening by a showing at Columbia College of a powerful documentary “The Hunting Ground” (premiered at Sundance) followed by a panel discussion in which one of the participants is an assault survivor—and now an effective activist. If you watched this year’s Academy Awards show in February, you likely learned that “Til It Happens To You” from “The Hunting Ground”, co-written by songstress Lady Gaga and Diane Warren, was one of five Oscar nominees for best song from a movie, and surely you will recall Lady Gaga’s astounding performance of that song. And you will also remember—and probably won’t soon forget—the image of the mass of young sexual assault survivors, both women and men, who slowly but definitively and in unison walked onto the stage to surround Lady Gaga as she sang of their heartbreak and triumph. I can assure you that no one in my home was dry-eyed listening to the urgency and power of the words and the commanding melody, understanding a little better what those brave survivors have endured—but also what compassion and support they and their cause are garnering. Performing that night of the Oscars turned out to be the first time that Lady Gaga so publicly shared her long-kept secret that she was sexually abused at the age of 19.
We return now to the Symposium. Click here to find a list of the hard-working Symposium Planning Committee members and its leaders, including co-chairs Yolaine Dauphin and the Director of the Salvation Army Promise Program; Symposium moderators Ann Breen-Greco and Carol Casey; Emily Masalski, coordinator for the November 5 evening program at Columbia; and Tracy Douglas who oversaw the implementation of the remote transmission of the Symposium at the Southern Illinois University site in Carbondale and the University of Illinois site in Springfield. Also listed are the names of the many co-sponsoring organizations that lent their financial support, input and other resources to the development and implementation of the Symposium which featured more than twelve topics and twenty speakers. Counting those present at the three locations, we estimate that 250 people were in attendance, representing a broad spectrum of professions with an interest in the subject, including those in the legal field and in social services, law enforcement, academia, psychology and health care—to a large extent mirroring the disciplines of the speakers who, during the day long program, shared their deep experience with victimized, predominantly female college students to help shed light on the nature and extent of the problem—now being called a ‘crisis’. Beyond that as a starting point, the audience anticipated being—and was—informed of (1) the efforts of some college administrations to address the problem or, as has been reported, to hide or minimize the problem while simultaneously failing to provide investigative, counselling and other support services for the women—and men—who report the sex crimes; (2) avenues for victims to seek legal redress of their grievances; (3) the psychological, emotional and physical damage experienced by the assault victims and potential recovery interventions; and (4) the developing legal and other tools available to attack the crisis at its source.
Also evident as the day progressed was a dim but expanding light at the end of a long path suggesting that new and vigorously applied existing laws, focused attention on the issue of sexual violence on campus, and a broader awareness of survivors’ stories can make a difference in the lives of female and male college students by forcing a change in the culture of male dominated sexual aggression and bravado that has long been imbedded in college life. Speakers expressed hope that the new laws and heightened awareness can also lead to an increase in the level of safety that students hope for and deserve while pursuing their higher education and post-graduation dreams—because we all agreed that it is not acceptable that, as many studies have shown, one in five women students are victims of sexual violence during the course of their college careers. As Catherine Lhamon, Assistant Secretary of the U.S. Department of Education’s Office for Civil Rights (OCR) so frankly observed during her presentation, “We are past the time when we say “It’s your fault” to girls who get raped. We are past the time when we teach our kids in school that this is what you can expect. We are too late in our history to be having that conversation.” Along with this perspective, we heard the message that it also is not acceptable that 6.1% of male students and an unverified number of gay students are victims of sexual violence during the course of their college careers.
The day’s ambitious program was introduced with appropriate gravity befitting such a serious subject by Illinois Supreme Court Justice Thomas Kilbride, a staunch advocate for equal access to justice. Symposium speakers represented government entities charged with regulatory enforcement and various educational institutions responsible for student safety and included Illinois Attorney General Lisa Madigan and her Office’s Civil Rights Bureau Chief; Keynote Speaker Catherine Lhamon from the OCR, previously mentioned; Cook County Sheriff Thomas Dart; Diane Rosenfeld, Director of Harvard Law School’s Gender Violence Program; Dean of Students Ashley Knight from DePaul University; Linda McCabe Smith who serves as Associate Chancellor for Institutional Diversity and Title IX Coordinator at Southern Illinois University; and Dr. Alan Berkowitz, a psychologist, trainer, popular speaker and independent consultant to educational institutions on programming for rape and sexual violence prevention, focused particularly on educating men on their responsibility for preventing sexual assault.
Besides other distinguished scholars, educators, policy-makers, government officials and social service providers, attendees were privileged to meet Sofie Karasek, a rape survivor who transformed her trauma into a positive force by co-founding and now serving as Director of ‘End Campus Rape’, a movement dedicated to informing the public about the extent of the problem of sexual violence on college campuses and enabling victims to be heard and to obtain justice from the educational institutions that should maintain a safe environment for all of their students. Ms. Karasek is also a featured survivor in “The Hunting Ground” and served on a panel following the viewing of that film on the Thursday evening before the Symposium.
IS CAMPUS RAPE A NEW CRIME—OR ARE WE JUST DISCOVERING IT?
If you momentarily thought this kind of act must be rare on college campuses, that thought was incorrect. But the error is understandable because, until recently, most citizens hadn’t heard much about such crimes taking place in that presumably welcoming environment, and even parents about to send their young adult children off to college—and college debt—have mostly been unaware that such a danger might be lurking on the very campus their daughter or son will call home for the next four years. But suddenly, we are reading and hearing regularly about this problem which has been aptly characterized as a ‘crisis’. As we learned during the Symposium, however, one piece of information to weigh against this recognition is data from some studies showing it is a more limited number of perpetrators that commit a greater number of the attacks, meaning that many of those committing such acts of sexual violence are—and have self-reported to be—serial criminals. If those studies are accurate, we do have to consider different approaches to identifying such individuals and determining how to restrict their access to the colleges and how to train law enforcement to catch the criminals before they strike again.
President Barack Obama, who initiated a campaign in September of 2014 to increase awareness of sexual violence on campus called ‘It’s On Us’, deserves credit for demanding that the shocking statistics reflecting a high percentage of sexual assaults on college campuses must be investigated and appropriately addressed. This first-of-its-kind White House campaign on the topic of campus sexual assault was no doubt inspired, in part, by the momentum following the U.S. Department of Education’s 2011 publication of the first in a now periodic dissemination of Dear Colleague Letters; a press conference held in early 2013 by students from several colleges regarding their jointly filed federal complaints alleging campus sexual assault is a national problem; and an on-line posting of federal complaints filed against universities by the U. S. Department of Education (DOE) showing the number having doubled—all of which information we learned from Sofie Karasek.
Yet, it is the President’s leadership in voicing concerns about sexual assault taking place in institutions of higher learning across the nation that has propelled the subject into the public conscience and public discourse. Moreover, The First Report of the White House Task Force to Protect Students From Sexual Assault, released in April of 2014 before the ‘It’s On Us’ campaign was launched and meaningfully entitled NOT ALONE, definitively identified the crisis on college campuses and ways to combat the crisis, including how to effectively respond when a student is sexually assaulted. (Find the Report at www.notalone.gov/assets/report.pdf along with helpful data and resources for students and schools.) On that website, you will also notice the number of the National Sexual Assault Hotline: 800-656-4673.) One critical outcome from the Obama Administration’s focus on this problem was a ‘discovery’ that assaults of this nature have been taking place for a long time and have continued for many reasons, including victims’ fear of repercussions for reporting the crime, or a belief, reinforced by examples, that the reports will not be taken seriously or fully investigated.
Worse yet, we have learned that in many instances, after a student has reported the violation, the school seriously delayed its investigation of the complaint or did nothing to punish the perpetrator even when the allegations were validated. As a consequence, if the victim decides to continue her or his education at the same school, that student is often forced to endure ongoing contact with the offender on campus and in classes. Due to this stressful situation, victims will often ‘choose’ to drop out of school, thereby deferring or giving up their dream of a successful career and more. We know that unfortunate result will only exacerbate the financial, social and psychological damage that the sexual assault set in motion.
WHAT LEGAL REMEDIES AND SUPPORT SERVICES CAN STATES AND LOCAL GOVERNMENTS PROVIDE TO VICTIMS?
Thankfully, recent public awareness of the extent of campus sexual assault and of the trauma experienced by the victims has prompted state legislatures to pass laws concerning such conduct. These laws that govern institutions of higher learning have their roots in our nation’s recognition of individual civil rights and the civil responsibilities of government and other covered entities to provide equal opportunity in education to their students. Thus, they focus on encouraging the reporting and proper investigation of allegations of rape; addressing the impact on victims and the protections they need; the establishment of victim services; and specific actions by the schools and law enforcement to foster changes in existing campus culture that so often enables, even rewards, sexual aggression against (mostly) women. Illinois is one state—in addition to California and New York—that has very recently passed a bill, P.A. 99-426 entitled ‘Preventing Sexual Violence in Higher Education Act’ (110 ILCS 155/1 et seq.), which takes effect on August 1, 2016.
At the Symposium, we heard about this important new Act from Illinois Attorney General Lisa Madigan who drafted the bill and advocated for its passage, and Karyn Bass Ehler, Chief of the Office’s Civil Rights Bureau, who worked with Attorney General Madigan on this important civil statute. Current federal laws and recommendations on this issue – outlined in statutes, regulations and federal guidance – are diffuse, making it confusing for some higher education institutions to understand and translate them into effective policies and programs on their campuses. Illinois colleges (and college students) may find Illinois’ recently enacted legislation especially helpful because it provides a roadmap to federally-mandated responsibilities and also includes two new requirements, described below, which have been identified as best and recommended practices.
In its mandate that all covered institutions of higher education develop, publish and implement a “comprehensive policy” covering sexual violence, domestic violence, dating violence and stalking that includes reporting procedures and university response guidelines, and in the other requirements imposed upon the school administrators, the Act makes it clear that schools must have defined and consistent responses to student complaints. (See Section 155/10 of the Act.) Furthermore, the schools must notify survivors of their rights; offer a “fair and balanced” procedure to resolve complaints—unlike the ‘hearings’ in some schools where the athletic director adjudicates complaints against student athletes who are in the sports programs that the director or his/her coaching staff oversee; provide training for students and school employees with the goal of increasing awareness of and responsiveness to complaints of assault; and offer protections to ‘bystanders’ so they are discouraged from reinforcing the perpetrator’s actions and instead are motivated to aid the victim and support her/his reporting of the attack.
Additionally, under Section 205/9.21(b), the schools must submit annual reports to the Office of the Attorney General as to incidents, trainings and complaint resolution outcomes among other mandated information. As a result of these reporting requirements and other responsibilities defined in the new Act, Illinois institutions of higher learning will be held accountable for creating safe environments for their students, for providing means for students to report assaults, and for following appropriate processes for investigating complaints and disciplining the attackers. The new Act includes two provisions not found in federal law: (1) a requirement to provide a “confidential advisor” for the survivor; and (2) a mandate for the schools to create a campus-wide task force or participate in a regional task force that must meet twice a year to review the schools’ policies and procedures as well as their education and outreach efforts.
Significantly, these institutions are required to include, in their policies, a definition of ‘consent’ which must meet identified minimum requirements but may establish stricter standards. In this context, it is reassuring to see that Section 10(1) of the Act recognizes “knowing consent” is not possible when the person is incapacitated due to drugs or alcohol, or if she or he is asleep or unconscious. Such a provision takes into account the reality that the incapacitated state in which many rape victims are attacked is rarely of their own doing and instead is a condition into which they are forced or lured by the aggressor(s).
It is critical to recognize that when educational institutions comply with state laws and with the federal Violence Against Women Act by responding effectively and promptly to complaints, all students, including victims and the accused alike as well as the general student body, are the beneficiaries. These laws recognize the need to balance a school’s ability to respond appropriately to reports of violence without impinging on the rights of the accused student. Moreover, the new Illinois law requires schools to incorporate several elements into the complaint resolution procedure to promote consistency and accountability.
We were also fortunate to hear from several County officials about how they discover and investigate allegations of sexual violence, including on local campuses, and how they work with campus law enforcement. One locally prominent speaker was Cook County State’s Attorney Anita Alvarez who has publicly lamented and taken action to curb sex trafficking of women and children. State’s Attorney Alvarez also committed her Office’s resources to prosecuting offenders under the State’s Criminal Code when intervention by school officials and the school’s law enforcement personnel is not effective or sufficient. Similarly, Cook County Sheriff Thomas Dart and Jan Russell, Senior Policy Counsel for Sheriff Dart’s Violence Against Women Program, expressed their Office’s commitment to support victims, including through the provision of sexual assault training for campus police. Lieutenant Karen Sullivan of the Chicago Police Department’s Bureau of Detectives, along with Northern Illinois University’s Police & Public Safety Chief Thomas Phillips and Vice President of Human Resources Mike Nicolai of the School of the Art Institute of Chicago, in turn advised us of their respective protocols for receiving and efficiently processing complaints of sexual violence and their responsibility for treating the complainants at the start with respect rather than suspicion.
It was important to learn of the multiple sources that notify the CPD of sexual assaults besides the victims themselves, including hospitals, rape crisis centers and college administrations. These law enforcement officials seemed to recognize that unless a victim is assured that her or his report is accepted as credible and that she or he will not be blamed for what happened, that person will hesitate to report incidents, allowing crucial evidence to be lost by delays in reporting the crime, and enabling aggressors to continue such conduct with impunity. From ongoing media reports of significant delays in the processing of rape kits and other physical evidence by local crime labs, we know we must keep pressuring those facilities to timely do their job so that the opportunity for bringing a case against a perpetrator is not unnecessarily lost. Failing to report an assault also deprives the victim of opportunities for receiving trauma intervention services to assist in her or his recovery.
Among the Symposium materials provided to the attendees was NIU’s manual on Title IX Policy and Procedures addressing sex-based misconduct, a publication which is readily accessible and applies to all students and University employees. The content is comprehensive in its reach, covering all the bases that would apply to any incident of sexual assault or sex discrimination including definitions; how and to whom a complaint can be reported; a list of resources for confidential counselling; the responsibilities of the institution for safeguarding its student population; the rights of a victim and of a respondent against whom a complaint is filed; the investigative process; what remedies are available and how to file a Title IX complaint; and what rights and rules apply to any hearings conducted pursuant to a complaint, all of which is a good segue into an overview of victim rights under federal law.
WHAT ABOUT FEDERAL LAW?
At the federal level, laws that address school related sexual violence and sexual harassment are useful and effective tools against institutions which foster a campus climate that allows sexual aggressors free reign. Those laws include the Violence Against Women (VAWA) Reauthorization Act and Title IV-A which require colleges to comply with the Clery Act, enforced by the U. S. Department of Education. The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, passed by Congress in 1990 following the rape and murder of nineteen year old student Jeanne Clery in her college dorm, addresses dating violence, sexual violence and stalking in educational institutions. While other federal laws already required colleges to submit Annual Security Reports, The Clery Act added a Victim’s Bill of Rights that requires colleges to provide awareness training programs, to disclose possible sanctions against aggressors, and to offer counselling and other protective measures to victims such as options for changes in both academic and living situations, whether or not the victim makes a formal complaint.
As we learned from survivor-activist Sofie Karasek, another important tool for the Federal Office of Civil Rights and for private litigants seeking monetary damages is Title IX which mandates gender equity in education programs and activities receiving federal financial assistance—a mandate that affects a great number of schools. (See 20 U.S.C. 1681(a)). Title IX also enforces, in K12 and higher educational institutions, Titles II, VI and other federal laws. Thus, students at covered institutions should expect their schools to “prevent, address and eliminate hostile environments” and assure their student bodies are free from sexual harassment and sexual assault. Furthermore, all students must be guaranteed equal access to educational opportunities, including in the areas of research, programming, occupational training and extracurricular activities. When a meaningful number of female students and/or gay students on a college campus are victims of sexual violence and the assaults are reported or otherwise become known to the school administration, and the administration does not appropriately respond, a case can be made that the college is allowing or even fostering an environment hostile to the female gender or to the LGBT community. Under Title IX, that school is illegally engaging in sex-based discrimination and can/should be reported to the OCR for investigation and possible intervention. As Ms. Lhamon advised and Ms. Karasek reinforced, the OCR also has the option of referring any case it receives to the U.S. Department of Justice.
FRATERNITIES, SPORTS AND THE ETHOS OF MALE ‘MACHISMO’
Several speakers, including Harvard Law School Lecturer Diane Rosenfeld, previously mentioned, and educator, curriculum developer and author Dr. Gail Stern, addressed the problem of the macho-driven climate at many colleges and universities that encourages aggressive sexual actions against women in particular but also against male students. Ms. Rosenfeld described fraternity houses where pornography is played continuously, and she showed a photograph posted on-line of a female student with her hands and feet tied behind her back, reminiscent of the way hogs are tied down.
Likely many of us have also read news reports of schools that decided to ban certain fraternities from campus because of sexual misconduct and other kinds of violent actions fraternity members committed during wild parties where alcohol flows freely and a state of extreme inebriation is applauded. In such situations, the fraternity members’ deadening of ‘normal’ inhibitions prompts them to treat women as objects of sexual conquest and engage in competitions to see who can drug and have sex with a woman at the party first, or how many will be invited to watch the sexual attack or join in as other aggressors to pin down and rape the drugged, drunk or unconscious woman, dragged to an upstairs bedroom in the fraternity house while a party is in progress.
In an unusual approach using humor and dramatic phrasings, Dr. Stern, who has advised and developed training programs for law enforcement personnel and members of the military, probably startled a number of audience members into realizing that the male attitude toward women and sexual engagement with women is almost comically barbaric and thus subject to deconstruction, and that the important goal is to make people comfortable discussing the issues so that these difficult topics can be more openly explored. When the taboo against raising and publicly airing matters of a sexual nature is overridden, students may find it easier to assess situations that are dangerous, trust their judgment and choose a better alternative. They may also become more comfortable reporting incidents of sexual violence that have been committed against them or someone they know to the school administration or law enforcement authorities.
While closing down the fraternity and its group residence is a reasonable action for college administrators to take in instances where female and male students are abused, the colleges often ignore earlier and widely-known instances of misconduct, like the recent incident of a fraternity member pressured into texting a female student during ‘rush’ season with a request that she post a photo of her exposed ‘boobs’ painted with the fraternity’s Greek letters, that escalates over time into opportunities for uncontrolled violence. Escalation of that nature occurs because no one at the institution asserts effective oversight to insure that the fraternity and its members are held accountable for these early instances of misconduct. Moreover, fraternity members who are disturbed by the exhibitions of male sexual aggression they witness are often afraid to criticize their ‘frat brothers’ for fear of being spurned or isolated by the group. These individual students may even be the ones who choose not to participate in the victimization of women and instead assume the role of ‘bystanders’, observing the degradation and assaults but doing nothing to intervene, verbally protest or report what they have witnessed to the college authorities or the police. In recognition of such occurrences, legislation concerning campus sexual assaults and policies issued by the educational institutions are beginning to include consideration of the bystander phenomenon and to require that it be addressed in training and through counselling services for the bystanders in an effort to discourage passive involvement in an assault. This specific kind of intervention recognizes the abusive culture that has taken root in many institutions of higher education and aims to change that culture. Another resource for understanding and addressing the problem of bystanders failing to respond appropriately when they witness an assault is Isabella Rotman’s “Not On My Watch, A Bystanders’ Handbook for the Prevention of Sexual Violence” which The School of the Art Institute of Chicago distributed to Symposium attendees.
WHAT IS THE IMPACT OF ASSAULT ON VICTIMS AND WILL SUPPORT SERVICES HELP?
ADDITIONAL RESOURCES FOR STUDENTS, SURVIVORS, RESEARCHERS, VOLUNTEERS and OTHER PROFESSIONALS
• Rape Victim Advocates (RVA): 24-hour Chicago Rape Crisis Hotline: 1-888-293-2080; www.rapevictimadvocates.org, 312-443-9603.
• Get involved in preventing sexual violence, even lobbying your alma mater to comply with Title IX: www.endrapeoncampus.org.
• Learn more about Title IX protections and remedies and how to file a complaint at: www.knowyourIX.org.
• Learn about counselling and volunteering through Porchlight Counseling Services at www.porchlightcounseling.org and its Confidential Helpline: 773-750-7077.
• Chicago Alliance Against Sexual Exploitation or CAASE at www.caase.org provides a number of services for survivors of sexual violence and engages in advocacy aimed at changing the culture of violence.
• Besides being able to access the first report of the White House Task Force to Protect Students from Sexual Assault on www.notalone.gov, you will also find on that website a Resource Guide for the college and university communities to assist them in preventing and improving the response to sexual violence in those institutions as well as links to further information and tools useful for advocacy groups.
• At www.bjs.gov/content/pub/pdf/ccsvsftr.pdf you will find the Campus Climate Survey Validation Study prepared by the Department of Justice’s Bureau of Justice Statistics (BJS) and released on January 20, 2016. The Study was based upon a nine-school pilot test seeking data on sexual victimization.
• For more information about the new Illinois law (P.A. 99-426), contact Karyn Bass Ehler, Civil Right Bureau Chief, at 312-814-5968 or kbassehler@atg.state.il.us.
• Learn more about the privilege granted to communications between a survivor and her “confidential advisor” regarding an incident of sexual violence that is set forth in the new Illinois law (entitled ‘Preventing Sexual Violence in Higher Education’) at 110 ILCS 155/20(d)(4) and also in the Illinois Code of Civil Procedure at 735 ILCS 5/8-804.
• At www.pcar.org learn about the Pennsylvania Coalition Against Rape which was founded in 1975 to end sexual violence and advocate for rights and needs of sexual assault victims. PCAR promotes public policies that provide protection and services to victims. PCAR also operates the National Sexual Violence Resource Center (NSVRC), identified below.
• National Sexual Violence Resource Center, at www.nsvrc.org, provides information about multiple types of resources related to sexual violence prevention and intervention, including study data, programs, training on sexual assault-related issues for professionals, library references and other websites covering the expansive topic.
• The Prosecutors’ Resource on Violence Against Women at www.aequitasresource.org was originally developed in 2009 and operated by PCAR until 2015 when it became a separate 501(c)(3) entity that is committed to improving the quality of justice in cases involving sexual violence, including intimate partner violence, sex trafficking and stalking, and to developing, evaluating and refining prosecution practices that increase victim safety and offender accountability.
• At www.utexas.app.box.com/blueprintforcampuspolice find The Blueprint for Campus Police: Responding to Sexual Assault developed from a collaboration overseen by the University of Texas.
• To find Clery Act data and how to understand the statistics; compliance requirements under Title IX and the Clery Act, including the 2013 VAWA Amendments; how to file a Clery Act complaint; training seminars, and information about individual state resources for reporting, visit the Clery Center For Security on Campus at www.clerycenter.org.
ACKNOWLEDGMENTS
The author of this article is grateful for the invaluable substantive editorial assistance of the staff of the Illinois Attorney General’s Civil Rights Bureau, especially with the section covering Illinois’ recently enacted PA99-426, the “Preventing Sexual Violence in Higher Education Act” which will take effect August 1, 2016. The thoughtful editorial input from Conference Co-Chair Yolaine Dauphin is also very much appreciated.