May/June 2011 Issue • Volume 39 • Issue 5

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Protection from Rape as a Civil Right:
The Evolution of Policy Concerning
Sexual Assault on College Campuses

Ashley C. Rondini,
ASA Congressional Fellow

In recent decades, women have outnumbered men in rates of college enrollment and graduation, across racial, ethnic, and socioeconomic groups. On the surface, this fact would seem to indicate progress towards gender equity in educational participation. However, when the persistent rates of sexual harassment and sexual violence experienced by the women on college campuses are taken into account, it becomes clear that equitable access to higher education alone cannot be read as evidence of comprehensive gender equality on college and university campuses.

The Scope of the Issue

U.S. Department of Justice (DOJ) and the Department of Education (ED) report that rape is the most common form of violent crime occurring within institutions of higher education (IHEs). In fact, the DOJ indicates that women who are in college experience higher rates of rape and sexual assault than women of the same age not in college. It is estimated by the National Institute of Justice that between 18% and 20% of college women will experience an attempted or actual sexual assault over the course of their undergraduate careers. This range is consistent with data collected through the Campus Sexual Assault Survey, cited by the National Criminal Justice Reference Service, which indicates that 19% of current female students and 2.5% of current male students reported experiencing a sexual assault since their matriculation.

It is important to note that men can be victims of sexual harassment and sexual violence, that women can be perpetrators, and that sexual harassment and sexual violence can occur in the context of same-sex interactions and relationships. In any of these scenarios, hegemonic assumptions surrounding gender role stereotypes may create unique and significant barriers for victims in reporting, accessing support, and seeking accountability for perpetrators. It is neither necessary nor appropriate to minimize the legitimate experiences of these victims in order to bring clear attention to the gendered implications of women’s vastly disproportionate rates of victimization by male assailants.

Research cited by the DOJ Community Oriented Policing Services (COPS) program, as well as the Office on Violence Against Women (OVW), indicates that fewer than 5% of actual or attempted rapes of college women are reported to the police. In many cases, this is because survivors are either fearful of reprisal from the rapist and/or fearful that the legal process itself will result in further emotional trauma or distress. If the 2,951 incidents reported through ED represented only 5% of the actual amount of forcible sexual offenses, these numbers would imply that as many as 51,820 sexual assaults occurred on college campuses in 2009 alone.

Campus Sexual Assault and Federal Law

When The Student Right-to-Know and Campus Security Act of 1990 (20 U.S.C. Sec.1092) was signed into federal law as an amendment to the Higher Education Act of 1965, it was intended to impose greater degrees of accountability and transparency for IHEs with regard to campus safety and security through the Department of Education. The law was later renamed The Jeanne Clery College Crime and Statistics Disclosure Act (“Clery Act”) in 1998, in memory of 18-year-old Lehigh University student Jeanne Clery, who was raped and murdered in her dorm room in 1986. Under Clery, IHEs receiving federal student aid funding are required to publish and submit annual reports containing campus crime statistics from the previous three years, as well their campus safety and security policies. The Campus Sexual Assault Victims’ Bill of Rights was added as an amendment to Clery in 1992, which required IHEs to develop and implement policies and procedures that effectively protect the rights of sexual assault survivors, as well as programs focused on sexual assault prevention. Subsequent amendments have been added to Clery over time, but the overarching policy goal of maintaining institutional accountability for student safety has remained unchanged.

Federal measures germane to campus sexual assaults are not limited to Clery. In 1994, The Violence Against Women Act (VAWA), originally introduced by then-Senator Joe Biden, was enacted as Title IV of the Violent Crime Control and Law Enforcement Act (P.L. 103-322). The original VAWA represented a legislative landmark with regard to recognition of violence against women as an issue of national priority. Specific funding designations for grants to address the issue of campus sexual assaults were added in the later Violence Against Women Act of 2000 (VAWA 2000; P.L. 106-386), and have remained attached to subsequent reauthorizations of the bill.

On April 4, 2011, Vice President Joe Biden spoke to a group of undergraduate students at the University of New Hampshire about the issue of sexual violence on college and university campuses. Biden’s speech coincided with the release of a “Dear Colleague” letter from the Department of Education, in which the Office of Civil Rights (OCR) issued guidance to IHEs concerning their responsibilities under federal civil rights law to address issues of sexual violence. The letter outlines the obligations of educational institutions under Title IX of the 1972 Education Amendments (20 U.S.C. Sec. 1681), which prohibits any kind of discrimination on the basis of sex, including sexual harassment, in the context of any education program or activity receiving federal funding.

The OCR defines sexual harassment as “unwelcome conduct of a sexual nature, including sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, including all forms of sexual violence.” IHEs are mandated under Title IX to appropriately address all reported incidents of sexual harassment, with particular attention to conduct that creates an environment sufficiently hostile as to prevent a student from being able to fully participate in, or benefit from, any aspect of a school’s educational opportunities and programs. According to research conducted by the Centers for Disease Control, survivors of sexual assault confront increased risks for depression, post-traumatic stress disorder, alcohol and drug abuse, and suicidal ideation. In addition to obviously posing a threat to one’s overall health and well-being, a struggle with any of these consequences of sexual violence victimization could also easily derail one’s educational pursuits.

The OCR has recently engaged in several investigations of well-known universities concerning their compliance with Clery and Title IX, in response to allegations that school officials failed to address incidents that created a hostile learning environment for female students. When such claims are substantiated, and school officials are found to have acted with “deliberate indifference” to reported incidents of sexual misconduct, IHEs are subject to ED fines as well as private lawsuits.

Resources and Awareness

While there is still more progress to be made, the federal government has put IHEs on notice with regard to their institutional responsibility to greatly reduce sexual violence, transform the normative cultural conventions that sanction it, and develop best practices to support those who have been victimized on their campuses. The DOJ Office on Violence Against Women currently oversees the Grants to Reduce Domestic Violence, Dating Violence, Sexual Assault, and Stalking on Campus Program, through which IHEs can access funding for the development of comprehensive sexual violence prevention programs. The Senate Health, Education, Labor, and Pensions Committee (HELP) is currently considering the Campus Sexual Violence Elimination Act (Campus SaVE Act), introduced on April 14, 2011, by Senator Robert P. Casey (D-PA). The Campus SaVE Act would amend the Higher Education Act of 1965 to improve education, reporting, and prevention related to campus sexual violence, domestic violence, dating violence, and stalking, by expanding the requirements of Clery.

Recent efforts from the Department of Education, Congress, and the Obama Administration to increase awareness of institutional responsibility for addressing sexual harassment and sexual violence have come about in response to the observable failure of several IHEs to adequately abide by long-existing laws. The basic tenets of Clery have been in effect for 20 years, and Title IX was passed almost 30 years ago. Moreover, the concept of freedom from sexual violence as a fundamental right has been championed by feminists concerned with women’s safety, health, and bodily autonomy for decades. What makes recent events particularly notable, however, are the highly visible ways in which both the Vice President and the Department of Education have explicitly invoked the latter to assert the federal government’s “official” interpretation and approach to enforcement of the former. The looming threat of Title IX and Clery violation investigations may push college and university officials to proactively seek out more comprehensive ways to address and prevent sexual violence within their institutional environments. Meanwhile, women’s status on college and university campuses must be critically understood, not only in terms of control over their own educational trajectories as evidenced by their experiences of higher enrollment rates,  but also in terms of control over their own bodies as evidenced by their freedom  from experiences of sexual violence.

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