Should campus rapists remain in the university system?
Part 1 of this blog stemmed from an article interviewing, Hanna Stotland, a college admissions consultant and lawyer who “gets students accused of rape back into school.”
When questioned about campus sexual assault, people tend to fall into two camps regarding their opinion of perpetrators: either they’re monsters who can never be redeemed and should never be allowed to step onto a college campus again or they’re just kids who made a mistake and deserve a second chance. I think the answer lies somewhere in between.
What should universities do with individuals found responsible for violating campus sexual misconduct policies?
Note: I am speaking of the responsibility of an educational institution to uphold its code of conduct policy and protect the safety of its community. University investigations of sexual misconduct are completely separate from criminal investigations by law enforcement, but both can occur at the same time.
The knee-jerk response to this question seems to be, “Well if they’re guilty of rape, the criminal justice system will take care of it, send them to prison for life, and nobody has to worry about them anymore.” But that’s not how it works in reality.
Criminal proceedings that find someone guilty of rape can impart punishments ranging from fines to life in prison based on factors including age of the victim, whether they are a repeat offender, and whether drugs or violence was used. As many as 95% of campus rapes involve intoxication as a means by which to render a person unable to consent, and by US law, these rapes are only punishable by 0-15 years in prison (pro tip: it’s usually 0). We know that rape accusations rarely (some say as low as 2%) result in a conviction, but even if they are found guilty on criminal charges, nothing stops a rapist from returning to school and potentially hurting other people, or even sitting right next to their victim in class. This is where the university proceedings come in—they can keep students off their campus who violate their code of conduct policy, regardless of whether a criminal investigation was conducted.
So what do universities do now when a student is found responsible for sexual misconduct? At my large institution (50,000+ students), these were the punishments handed down to students during the last academic year:
It’s worth noting that these findings came from the 81 reports of sexual assault made by students, 21 of which were formally investigated, and 8 of which resulted in the finding of a violation. Let me reiterate: sexual assault accusations rarely result in a conviction, and that’s not because all of the other ones were found to be “false.” The most common reason for an investigated accusation to result in a finding of no misconduct is lack of evidence.
When the victim knows their perpetrator, as they do 90% of the time, DNA evidence doesn’t matter. It doesn’t even matter if they can prove that the two individuals had sex. What matters is consent. How can you prove that the victim didn’t consent? The only way is to either have witnesses or recordings, which are almost never present in your own bedroom where most of these assaults occur.
This question of giving consent often turns into a query of proving whether the assailant knew the victim didn’t consent. So even if the victim didn’t consent, the defense will argue that the accused individual thought they had consent. And then all of a sudden what was a sexual assault turns into a misunderstanding. No harm, no foul. Case closed.
But for the victim, the case is never closed. And there was likely plenty of harm. Sexual assault (along with torture/captivity) is the type of trauma most likely to lead to post-traumatic stress disorder—more than 50% of individuals who experience sexual assault will develop PTSD. For comparison, 30% of combat veterans develop PTSD, and 4% of people who survive a natural disaster develop PTSD. People with PTSD incur very real damage to the brain, to stress response systems, to digestive systems, and a whole slew of other life-sustaining functions. But there is no simple way to “see” this kind of damage, not like bruises and broken bones.
So in the absence of witnesses and the absence of bruises, how can the court verify any wrongdoing? Just this week, HuffPo reported that a college asked a victim for the names of all her boyfriends since she said she was raped. They were especially interested in the first partner she had after she said she was raped because she claimed that the rape left her unable to have sex, and they wanted to verify that with him.
I’ll save my thoughts for now on why the sexual difficulties after rape are absolutely devastating—yes, even 10 million dollars devastating—because it’s not just about sex. While she claimed sexual impairment as a consequence of rape, should her difficulty with sex be used as proof of traumatization? Or proof that a rape occurred? I think not, especially given the fact that sexual difficulties aren’t a universal consequence of rape, and asking her partners is not a reliable measure of her own sexual issues, which they may or may not even have been aware of.
So this is where my super science nerd brain kicks in, and being a neuroscientist who studies the effects of trauma on the brain, I started hypothesizing ways to see trauma. I envisioned a system that was part blood test, part brain scan that would show the scars of trauma and that could even estimate when the trauma occurred. We could use this as evidence in court:
Exhibit A: the coupling of the prefrontal cortex and amygdala has been compromised.
Exhibit B: the negative feedback of the cortisol stress response is dysfunctional.
These phenomena would not be present if consent was given.
Bam! Problem solved! Aside from the 20 years it would probably take me to develop that system. And aside from the fact that not all people exposed to trauma experience long-lasting post-traumatic stress symptoms. Oh wait…
So it shouldn’t even matter whether or not she can have sex because traumatization isn’t always an outcome of rape, and it certainly isn’t consistent among victims.
Some victims of sexual trauma can recover relatively quickly. The way in which an individual heals depends on all kinds of factors like past history of abuse or assault, genetic makeup, and perhaps most importantly, social support. So if a person is assaulted and is fortunate enough to have a healthy family dynamic, supportive friends, access to trauma-informed therapy, and recovers without losing years of their life to depression, PTSD, anxiety, suicide, addiction, eating disorders, and the host of other things associated with trauma, does that mean a rapist shouldn’t be punished? Hint: the answer is no.
Statistically speaking, if this one person they raped didn’t develop PTSD, the next one would. And for those individuals, the average time to recovery from the start of therapy is about three years or, for more than half of victims, even longer, which also involves significant financial impact due to time off work, cost of therapy, medication, etc. It took me three years of therapy (over $30,000), twice a week, for me to be able to function on my own.
The crime sure seems worse when the victim experiences long-term dysfunction in mental stability and ability to function on a daily basis, but the truth is that the way in which sexual trauma affects a person is often determined by the kind of care they receive—or more accurately, don’t receive—afterwards, not the nature of the assault itself. With that, should the act of rape or sexual assault be judged solely on the matter of consent without regard to whether the victim was severely traumatized or not? Maybe. But that brings us back to square one with it being almost impossible to prove consent. Either way, rape should not be considered a “no harm, no foul” offense. You can still get a DUI if you drive drunk, even if you don’t hurt anybody. You should still be penalized for rape even if your victim ends up not looking like the disasters we imagine all rape victims to be.
But now we’re back at how, exactly, should the sentence be determined?
How does the university decide who gets expelled, who gets suspended, and who gets to stay? Are some kinds of sexual assault worse than others? Are some kinds of assailants worse than others? These policies, if they exist, are not transparent. As of July 1, 2015 new federal regulations require institutions to disclose details of their disciplinary proceedings, so colleges will be forced to think about exactly why they give the punishments they do, and to whom.
The status quo now is leaning toward suspending or expelling students found responsible for sexual misconduct. This is what so many survivors called for—they didn’t want to have to sit in class with their rapist, and rightfully so. But what about helping them enroll at another university, who will probably never know this student was found responsible for sexual misconduct?
The sanctions of suspension and expulsion that my school employed last year became more common after outcries of injustice for their former lax punishments of “behavioral compliance plans,” one of which was simply writing a 500-word essay about the sexual assault they committed. An assault at James Madison University was video recorded, and the individual found responsible was given “expulsion after graduation.” In the case of the woman whose sexual difficulties came into question, the student who raped her was found responsible and expelled, but the college changed the status on his transcript from “expelled” to “voluntarily withdrawn” in order to “assist him in seeking further studies.” So not only was the reason for his expulsion—rape—not included on his transcript, but then the fact that he was even expelled at all was erased.
This is not okay. Suspending or expelling a student found responsible for sexual misconduct is a step in the right direction for a university to protect the safety of its own community, but universities have the power to really do a lot more for this issue that the criminal justice system does not. Simply removing a student from a campus does nothing to address why they assaulted somebody in the first place, and does nothing to prevent them from assaulting people anywhere else.
I agree that a student found responsible for sexual misconduct should be removed from the campus in which the assault occurred, but what if instead of just shuffling them to another community—out of sight, out of mind—the university system did something to actually address the underlying issues here? If the student chooses not to transfer to another college, there probably isn’t much that can be done, but if the student does transfer, that allows for an opportunity to do something nobody has really done—to see if we actually can change sexual predators’ behavior to stop this cycle of abuse and violence. What if keeping students responsible for sexual misconduct in the university system, where they can be monitored, is the best way to try to address this issue? A college has every right to include a behavioral plan as a caveat for admission of a student who violated their former school’s code of conduct policy. This is what it could look like—the student in violation would:
- Be listed in a database of individuals found responsible for violating a school’s sexual misconduct policy. The other students and faculty on campus have a right to know.
- Be restricted to taking online courses during the first year.
- Be placed on a no alcohol probation policy.
- Be required to attend weekly individual therapy sessions.
- Be required to attend a comprehensive program that addresses consent, healthy relationships, masculinity, gender roles.
I don’t know if this would reduce the prevalence of assaults, and I have a feeling many students would just say fuck this and not go back to school, but I think it’s worth a shot. We know that educational programs for children and teens work to prevent sexual assault and relationship violence, but we don’t know if it’s too late to change the behavior of people who have already committed these acts. It’s impossible to simply isolate all the rapists from society until we have a generation of kids who grew up with the education that might really reduce this violence, so maybe we can use the phenomena of campus sexual assault that identifies assailants but doesn’t send them to jail to try to fix this.
I’m not saying that people who violate other people deserve a second chance or deserve to be redeemed, but I do think we owe it to ourselves to figure out a way change this culture—and the only way to change rape culture is to change the people who promote rape culture. If that doesn’t work, then I guess we can go back to trying to send them all to prison for life and hope we raise better kids in the future.
Note: In reply to comments suggesting “the article seems to use the phrase sexual misconduct interchangeably with rape and it could mean anything.” Sexual misconduct and sexual assault are terms used in university policies that can be used interchangeably. Rape is a type of sexual misconduct/assault. When I use these words in this article, they follow the below definitions.
Sexual misconduct/assault refers to a physical sexual act perpetrated against a person’s will or where a person is incapable of giving consent. A number of different acts can fall within the definition of sexual misconduct, including rape, sexual assault, and sexual coercion.
• “Sexual Assault” is defined as actual, attempted, or threatened sexual contact with another person without that person’s consent.
• “Rape” is defined as sexual penetration of another person without that person’s consent. Penetration can be of the mouth, vagina, or anus, and can be with a penis, tongue, finger, or foreign object.
• “Sexual coercion” is defined as the act of using pressure, deception, manipulation, or alcohol or drugs to have sexual contact with someone against his or her will, without the use of physical force. Pressure can mean verbal pressure or emotional pressure.
Rape is not necessarily more traumatizing than non-penetrative sexual assault, which is why this is such a complicated issue. How do we determine an appropriate punishment when there is no one-size-fits-all response to sexual trauma?