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Title IX And Sexual Assault At Harvard: Should State Law Enforcement Play a Bigger Role In Investigating Campus Assault Cases?

Harvard University, which is the subject of a civil suit from a former student who says the administration did little to help survivors of sexual assault.

CREDIT: Flickr user Will Hart.

A 22-year old recent Harvard graduate, Alyssa Leader, filed a lawsuit last month against her former university for allegedly failing to respond to years of her reported sexual assaults. Leader claims that Harvard’s administration took no action, as required by its newly-adopted sexual assault policy, after she spent two years filing complaints about her abuser stalking her at work and continuing to live in her dorm. The harassment only abated after she filed a court-ordered restraining order against him.

The Leader case has placed Harvard’s sexual misconduct policies under scrutiny, and challenged the authority of a Title IX stipulation which allows universities to handle campus sexual assault internally. Some sexual justice activists argue that it is up to the victim whether to report their case to outside courts and law enforcement or only to their university; others argue that too many campuses silence reports of sexual assault in hopes of maintaining their reputations, and insist that mandatory law enforcement referral is necessary to bring campus rapists to justice.

One in five women are sexually assaulted while in college, but more than 90 percent of these victims of on-campus sexual violence do not report the assault, according to the National Sexual Violence Resource Center. Rape is already the nation’s most under-reported crime, with an estimated 63 percent of cases going unreported. This is exacerbated on college campuses, where many victims report feeling too vulnerable to talk to campus officials, afraid that their case will not be taken seriously, or reluctant to participate in criminal trials should the case advance.

Over the past decade, the staggering prevalence of campus sexual assault has prompted federal inquiries into universities’ handling of such cases. In 2014, the Obama administration released the names of 55 colleges nationwide under investigation for their policies on reporting and addressing sexual assault on campus. Leader’s alma mater, Harvard, appeared on the list alongside several other prestigious colleges–Dartmouth, Princeton, and the University of Southern California among others.

Under threat of not receiving federal funds if their sexual assault policies were not up to par, many universities–including Harvard–adopted new responses to allegations of sexual misconduct in late 2014. The new Harvard policy defines the terms “sexual assault” and “sexual violence,” outlines private and confidential resources for survivors, and informs them of their right to report their assault to officers with the Harvard University Police Department, who are “qualified to handle crimes of a sensitive nature,” per the policy.

However, many victims of sexual violence on campus are even more reluctant to report their assaults to external law enforcement than they are to report to campus officials. According to a 2015 poll conducted by the National Alliance to End Sexual Violence and Know Your IX, 90 percent of sexual assault survivors wanted the option of whether to report and to whom, while 80 percent said that mandatory police referral of assaults could have a “chilling effect on reporting.” More than 75 percent of those surveyed believed that fewer people would report their assaults if campuses automatically referred cases to police without the victim’s consent.

“When I reported to campus officials, I was not ready to press charges and if I had been forced to report to the police I wouldn’t have been able to do it,” read one anonymous response to the poll. “I wouldn’t have told anyone because I would have felt like I had even less control of myself. Having the decision be my own and on my own time made it a lot safer and healthier.”

The option of whether or not to report campus sexual assault to outside law enforcement stems from a provision in Title IX, the landmark 1972 federal law prohibiting “discrimination on the basis of sex in any federally funded education program or activity,” according to legislation. The provision stipulates that universities must investigate every case of sexual assault reported to administration, but it is up to the survivor to determine whether or not to take their case to external law enforcement.

Know Your IX, a youth-led organization based on Title IX advocacy on campus, explains that “to make sure that all students, regardless of their gender identity and expression, have equal access to education, schools are required to prevent and respond to reports of sexual violence. This isn’t a replacement for reporting to the police; it’s a parallel option for survivors based in civil rights rather than criminal law.”

The 2014 White House investigation of campus sexual assault mishandling concluded that many survivors opt not to report to law enforcement, or even to school officials, out of fear that their cases might become public.

“For many survivors, campus reporting is their only option,” according to Know Your IX. “Many victims of sexual violence don’t want to turn to the criminal justice system: they may fear skepticism and abuse from police, prosecutors, or juries; they may not want to go through the ordeal of a long trial; they may fear retaliation from their assailant, who will most likely not end up prosecuted, let alone convicted; and they may be hesitant to send their assailants to prison. But even survivors who do report to the police are often abandoned by the system.”

Indeed, only an estimated seven percent of rapes lead to an arrest, only three percent will be referred to a prosecutor, and only two percent of rapists will spend a single day in jail, per the FBI and Department of Justice.

James R. Marsh, a lawyer who represents victims of campus sexual assault and founder of the Children’s Law Center in Washington D.C., argues that Title IX should provide reparations to students who suffer from the school’s mishandling of assault complaints.

“If a school responds inadequately or delays the investigation, its own inaction may subject the student to a hostile environment for which the school must remedy,” says Marsh in an article on his Title IX-based website. “For example, if the school ignored a student’s complaints and the student had to continue classes with the perpetrator, causing a drop in grades due to inability to concentrate, the school may need to permit the student to retake the class without academic or financial penalty.”

This recalls Leader’s case against Harvard, which centered on her reported emotional issues, failing grades, and distress at home, school, and work caused by her alleged assaulter’s stalking. She reports that the only reprieve from the stalking came after she took her case to court and filed a restraining order against her alleged assaulter one month before graduation, forcing him to move from their shared dorm.

Leader’s lawsuit calls into question the effectiveness of campus handling of sexual assault versus external law enforcement and legal intervention. The case forces legislators and survivors to weigh the benefits of case confidentiality versus the benefits of successful responses – and to evaluate whether external law enforcement itself is responding successfully enough in the first place.

“Sexual violence is very, very serious, which is why survivors need multiple real options,” according to Know Your IX. “Indeed, it is too serious to leave to a faulty criminal justice system, no matter how comforting our misplaced faith in that system may be.”

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