By Katherine A. Greenier, Director, Patricia M. Arnold Women’s Rights Project, ACLU of VirginiaThe statistics are staggering: 1 in 5 women are sexually assaulted while in college, and approximately 81 percent of students experienced some form of sexual harassment during their school years. Sexual violence in schools and on campus is a pressing civil rights issue. When students suffer sexual assault and harassment, they are deprived of equal and free access to an education.
According to a recent Richmond Times-Dispatch analysis of reported sex crimes at colleges and universities, “sexual assaults on Virginia college campuses seldom result in an arrest or conviction, in part because half the women who report the attacks decline to pursue charges against their alleged assailants.”
The paper reported that “the analysis of seven schools in Virginia found that campus police investigated 62 reported sex crimes during calendar years 2008, 2009 and 2010, with just seven cases resulting in arrests and four in convictions.” Further, “the collective rate of arrests and convictions for the seven schools is well below the national and state average for reported sex crimes at large, according to federal crime data and a 2009 analysis of national rape statistics.”
The fact that some victims refuse to cooperate with police or don’t want their assailants charged is a complex and sensitive decision. Victims of sexual assault will respond to and seek to recover from assault in different ways. Self-blame, fear of retaliation, and fear of intrusive and re-victimizing court procedures are some of the reasons that prevent many sexual assault survivors from reporting their assault.
However, just because victims do not seek criminal prosecution does not mean that they don’t want protective measures provided by the school itself – protections schools are obligated to provide under Title IX of the Education Amendments of 1972.
About Title IX and Sexual Assault
Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in any education program or activity that receives federal funding. Discrimination may include sexual harassment, rape, and sexual assault, making the law a powerful tool for students who want to combat sexual violence at school and on college campuses.
Under Title IX, schools receiving federal funds have a legal obligation to protect students from gender-based violence and harassment-- including sexual assault-- whether committed by a faculty member, staff person, or fellow student. Schools may be held legally responsible when they know about and ignore sexual harassment or assault in their programs or activities. Sexual harassment qualifies as discrimination when it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Courts have generally found that even a single instance of rape or sexual assault by another student meets this standard.
Among other requirements, federally-funded schools must provide a safe environment for students and ensure all students have equal education opportunities, have a readily available policy against sex discrimination, promulgate procedures for students to file complaints concerning sex discrimination, and prohibit sexual and gender based harassment “even if the harasser and target are members of the same sex” and “regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.”
If school personnel become aware that a student has experienced sexual harassment or violence, schools are required to promptly investigate the complaint, even if the police are doing a separate investigation. Schools must keep victims apprised of the investigation and inform them of how to appeal the schools’ findings.
What’s Happening in Virginia
According to the Richmond Times-Dispatch’s analysis, “cases handled through the student judiciary process rarely resulted in expulsion... Virginia Tech was the only university to report dismissing a student for sexual misconduct during those years.”
In Virginia, last spring, the Department of Education's Office for Civil Rights told universities they must lower the evidentiary standard for holding a student accountable in campus judiciary procedures. The schools were advised to use the civil standard of a "preponderance of the evidence," rather than "clear and convincing evidence."
The pressure from the Department to respond more aggressively to sexual assault on campuses coincides with the State Crime Commission’s study of a measure that seeks to change the way rapes on campus are investigated. The Commission’s hearing this past Wednesday directed staff to “study options that would mandate notification of outside law enforcement when a death or rape is reported on campus, and require the development mutual aid agreements between jurisdictions.” Next month, the Commission will report its findings and make recommendations to the General Assembly, which we’ll be watching closely to ensure all students are protected on campus.
What Students Can Do
In the past few years, survivors of sexual assault have successfully sued universities in both federal and state courts for indifference to known situations of harassment. Campus activists against sexual assault can use Title IX in response to an incident of sexual harassment or assault to insist that their administrations respond to victims’ needs and take action to protect students.
Campus activists can also urge the administrators to respond appropriately so they can avoid the “deliberate indifference” that could render the school liable under Title IX. For example, schools must keep victims safe from verbal or physical retaliation from other students, including the alleged attacker and his/her friends, and faculty, like coaches and teachers. If there is a restraining order or order of protection, schools must enforce it.
If you are a victim of sexual assault and believe your school has violated Title IX, or if you are a student interested in learning more about how Title IX protects you on campus, please contact the Patricia M. Arnold Women's Rights Project now at kgreenier[at]acluva.org.