| June 4, 2014
April 4th, 2004, is a date Laura Dunn has never forgotten. That was the day the Midwestern preacher’s daughter who didn’t believe in sex before marriage says she lost her virginity to not one but two University of Wisconsin-Madison athletes. Dunn was a freshman member of the crew team, attending a boozy frat bash, and she lost count of her intake after seven raspberry-vodka shots. She remembers two older teammates led her out, guys she knew. She was stumbling drunk, but one of them helped her walk, and they headed, she thought, toward another campus party. Instead, they led her to one of their apartments, where she found herself on a bed with both of them on top of her, as she drifted in and out of consciousness. When she started to get sick, one of them led her to the bathroom, where he penetrated her from behind while she was throwing up.
The next morning, she went back to her apartment, tossed her bloody underwear in the hamper and took a shower. „It was awful. I was trying to get it off my skin.“
In the afternoon, one of the teammates called. „He said, ‚I felt bad for you, are you OK?'“ recalls the petite brunette, a recently graduated law student. „I was like, ‚Why did I find blood in my underwear?‘ He was like, ‚Do you want to talk about it?'“
They agreed to meet later, off campus. Both young men showed up. „I said, ‚What did you do?‘ And then one said, ‚I raped you.‘ But the other teammate was like, ‚No, it was a threesome. It was great.'“
It took Dunn more than a year to come to terms with the truth of the first assessment. Ten years on, she’s still looking for justice.
In the past few years, the issue of campus rape has exploded, with dozens of schools, including Harvard Law, under investigation. Activists are protesting on campus and in Washington. The president of the United States is talking about it, and his vice president and White House staff formed a task force to combat sexual violence on campus.
„Sexual violence is more than just a crime against individuals,“ Obama said, announcing the task force at the White House in January. „It threatens our families; it threatens our communities. Ultimately, it threatens the entire country. It tears apart the fabric of our communities. And that’s why we’re here today – because we have the power to do something about it as a government, as a nation.“
Activists and victims proclaimed he was the first American president to utter the phrase „sexual violence.“ Four months later – lightning-fast by government task-force standards – the group made a series of recommendations to colleges about dealing with sexual-assault charges.
„It is incredible that the president of the United States of America told survivors he has their back,“ says Caroline Heldman, chair of the department of political science at Occidental, who has counseled victims on her campus and is writing a book on the issue. „We have never seen anything like this in the 100-plus years women have been fighting sexual violence.“
Feminists hailed Obama’s involvement in the rape issue as historic, a watershed moment for women’s politics. A wave of student activism preceded the presidential announcement, with thousands of Laura Dunns coming out, putting their names and faces behind charges of grotesque sexual abuse. Their stories are more common than they thought. A 2007 Department of Justice-funded Campus Sexual Assault survey, conducted at two large Midwestern universities, found one in five college women said they had experienced some type of sexual assault. And another DOJ study found that a whopping 75 percent of college rapes occurred when the victims or the assailants had been drinking.
More college women have become willing to speak publicly about their ordeals thanks to social media, where they first formed networks and traded similar tales of drunken violations, and of campus investigations that led nowhere. They started sharing information about their rights under federal law, and about how to tell their stories, and how to collectively file federal complaints against their colleges and universities.
Rape is a local law enforcement issue, but when it happens on a college campus, it also becomes a federal issue, because of several statutes addressing women’s rights at educational institutions. The Clery Act was passed in 1990, named after Jeanne Clery, a Lehigh University student who was asleep in her room when a 19-year-old fellow student forced his way in and raped, tortured and strangled her. The law named after her requires campuses to report incidents of violence on campus.
The second major law that applies to campus rape is Title IX, passed generations ago, in 1972, which broadly required colleges and universities to provide equal educational opportunities for men and women. In 1977, legal scholar Catharine MacKinnon first developed the legal theory that sexual assault and harassment limit women’s educational opportunities. A few court cases in the Nineties established that the law also covers sexual harassment and sexual assault on campus.
Under Title IX, rape victims can file complaints with the Department of Education, which is charged with investigating colleges that may have mishandled the issue. But the cases that have trickled up to the DOE over the years were never publicized and, apparently, the schools hardly punished. A 2009 study by the Center for Public Integrity found that between 1998 and 2008, the DOE ruled against just five universities out of 24 resolved complaints. Title IX allows the DOE to punish institutions by cutting federal funding. That punishment has never been meted out. More commonly, the cases end with institutional promises to do better.
The president’s task force, headed by Vice President Joe Biden and presidential adviser Valerie Jarrett, worked fast, taking 90 days to listen to victims, advocates and other „stakeholders,“ Jarrett says. „It’s an act of extraordinary bravery for these women to come forward. Everyone was deeply moved by the stories we heard.“
The task force’s first recommendation is that all colleges survey their students to gauge the number of campus assaults. In the wake of the White House’s report, the DOE released a list of 55 colleges and universities under investigation for their possible botching of sexual-assault complaints; historically, these investigations have not been transparent. Activists have argued that naming and shaming will get recalcitrant administrators to start taking them seriously, and that parents and prospective students have a right to know how safe campuses are for young women.
The task force also urged schools to institute standard protocol for handling sex-assault cases and initiate bystander training for young men, teaching them to intervene instead of act as idle spectators when buddies take incapacitated young women into dark rooms.
The task force did not recommend removing what may be the most controversial element of the current system: leaving colleges to adjudicate sexual-assault claims. Under the criminal-justice system, rape is a felony. But the vast majority of campus assaults are never reported to police, let alone the perpetrators arrested or tried in criminal courts.
Sexual-assault cases began entering what is essentially an extrajudicial civil-law system when sexual harassment was ruled by the courts to be covered by Title IX. And many activists have not objected to this, partly because the standard of proof for finding guilt is lower under college systems than it would be in a court of law, and because local law enforcement responses are often vastly inadequate.
When students make sexual-assault accusations, perpetrators are punished or not depending on the idiosyncrasies of campus tribunals – whose proceedings often involve numerous delays, multiple hearings and appeals, and problematic or insufficient conclusions. Colleges usually delegate committees – most comprising individuals without any legal training – to hear both sides of a rape story, and then sort it out.
In their ambiguity, ineffectiveness, opacity and controversy, campus-rape tribunals resemble the military’s system of adjudicating sexual-assault claims. These separate legal realms, say some activists, are a large part of the problem. „Both are target-rich, closed environments with separate justice systems,“ says Heldman.
Colleges also have other motives that make them less than ideal for adjudicating rape: They often put their brand and reputation above the rights of the victims. There have been egregious examples of this over the years. In 2006, Eastern Michigan University covered up the murder of a female student, Laura Dickinson, letting her parents believe for 10 weeks that she died in her bed of natural causes. Activists shared horror stories about ongoing harassment of victims and their advocates at many colleges.
The task force suggested campuses could streamline their systems by dispensing with committees and assigning a single investigator to deal with sexual assault. But the investigator-judge model strikes civil rights lawyers as dangerously Inquisitional. „It’s difficult to see how this medieval model would be more likely to produce just results,“ wrote Robert Shibley, a First Amendment attorney with the Foundation for Individual Rights in Education.
In criminal courts, where rape is punishable by prison, the prosecution has a high burden of proof for conviction. But college tribunals can make a rape finding based on „a preponderance of the evidence.“ And the punishment institutions can mete out is commensurately less draconian than that of the criminal system. There is no jail time. At worst, perpetrators can be expelled; more often administrators suspend them for a semester or two, or for the duration of the time that the accuser is on campus.
Laura Dunn’s four-year saga is all too common. She didn’t report her rape until more than a year after the fact. A professor told her pre-law class that raped girls on campus had the option of reporting incidents to the dean. Dunn walked out of that class and straight to the dean, initiating a process that took two years. She also reported the incident to local police.