The latest evidence that many U.S. colleges are badly bungling their responsibility to effectively investigate and address sexual assault on campus came Sunday in the form of a lengthy New York Times report on a 2013 incident at Hobart and William Smith Colleges in upstate New York.
In that incident, a student named Anna (she gave the Times permission to use her first name) who was two weeks into her first semester on campus, reported she was sexually assaulted twice in one night by members of the college football team. Despite witness testimony and physical evidence, however, the college took just ten days to exonerate all three of the accused. Worse, the process by which it did so was slapdash, biased, and riddled with error.
The Times investigation of Hobart and William Smith comes at a time when the failure of U.S. higher education to address campus rape is coming under high scrutiny. In January of this year, President Obama created a Task Force to Protect Students From Sexual Assault, and in April that task force released its first report, along with resources aimed at strengthening colleges’ sexual assault policies.
The standards for sexual assault investigation promulgated by the task force so far are preliminary and partial, but even these initial materials make clear that Hobart and William Smith’s policies were deficient in the most basic ways.
The task force’s Checklist for Campus Sexual Misconduct Policies, for instance, says such policies should be organized in a “clear, logical” way, and offers no-contact orders as an example of the “immediate steps” colleges should use to “protect complainants.” At Hobart and William Smith, however, the disciplinary panel overseeing Anna’s complaint apparently misread its own policies when advising her on appeals procedure and took five months to rule on her complaint that one of her attackers had violated its no-contact order.
Even more disturbing than these lapses, however, are the ways in which Hobart and William Smith’s defective procedures are in compliance with current federal regulations. In this regard, three concerns stand out: denial of counsel, inadequacy of training, and interference with ongoing investigations.
The federal government regulates campus sexual assault adjudications in a variety of ways. Campuses are required, for instance, to inform students of their right to make a complaint to law enforcement, and to use the “preponderance of the evidence” standard in resolving all complaints that are addressed on campus. No federal law or regulation, however, gives students the right to have a lawyer, counselor, or other adviser present during their appearances before such judicial bodies.
At Hobart and William Smith, both Anna and the men in the case were permitted to bring an “adviser” with them when they testified before the committee, but in accordance with college rules those “advisers” were forbidden to speak at any time. As a result, Anna had no one present to assist her when members of the committee misrepresented witness statements to her detriment, asked her inappropriate questions about her behavior on the night in question, or invited her to speculate about events that transpired while she was blacked out due to excessive alcohol consumption.
Federal law requires that members of campus judicial boards such as Anna’s be trained in adjudicating sexual assault complaints, and Hobart and William Smith says the members of its panel receive “significant, multi-day trainings conducted by national experts.” Transcripts of Anna’s hearing obtained by the Times, however, reveal an astonishing lack of competence. In addition to the lapses discussed above, members of the panel interrupted Anna and each other at crucial, sensitive points in her testimony; on two separate occasions, members of the panel interrupted her description of the sexual assault itself to initiate questioning about unrelated, subsidiary issues.
The panel members’ incompetence was not restricted to the tone or content of their questioning. They held the hearing before Anna’s rape kit had been processed, and only one of the panel’s three members reviewed the medical report completed on the night of the incident—a report that indicated that Anna had been the victim of sexual assault. They failed to confront the alleged assailants about fundamental contradictions in their statements to college officials. They pressed Anna to explain her initial reluctance to submit to a rape kit, apparently unaware of the physical and emotional trauma involved in such an examination. One even asked whether a witness who had seen her being sexually violated might have mistaken close dancing for sex—until Anna reminded the questioner that the witness had described seeing the assailant’s pants around his ankles.
That the members of the panel were not expert in addressing sexual assault complaints is not surprising. Such panels at Hobart and William Smith are staffed by volunteer faculty and staff members, and Anna’s complaint was heard by a human resources administrator, a junior faculty member from the psychology department, and the director of the campus bookstore.
A third egregious lapse in procedure at the school concerned the football team. All three of Anna’s alleged assailants were members of the team, and two days after the initial incident the coach of the team brought the three together for a locker room meeting with himself, two team captains, and a teammate who claimed to have witnessed one of the assaults. Two days after that meeting, one of the accused recanted his initial statement to the college, bringing it more in line with the evidence that had been gathered.
Shockingly, none of this—the refusal of counsel or assistance to complainant and accused, the lax training and shoddy questioning by the panel, the coach’s apparent interference with an ongoing investigation—violates federal law or regulation as currently written. But that may be about to change.
In its April task force report, the Obama administration offered a roadmap of its future plans. This September, the Department of Justice will be launching a new training program for campus officials tasked with investigating and adjudicating sexual assault complaints, and in October the department will begin a review of standards for such investigations. It is likely that these processes, and others underway within the administration, will lead to new legislation and regulation in the future.
The content of such laws and regulations will be absolutely essential to protecting the rights of students who are victimized by sexual assault on campus, as well as those who are accused of such crimes. But mere compliance with law and regulation should never be seen as disposing of a college’s obligations to its students.
There is, of course, intense debate on when, how, and whether responsibility for addressing campus sexual assault should be taken out of the hands of the college and given to police and prosecutors. Whatever one’s position on that question, however, the college will always have a vital role to play in the process. When an incident is brought to the police there will always be a delay—often a lengthy one—in resolving the case, and during that time there will be decisions to be made about what restrictions should be placed on an alleged perpetrator. After a conviction, if a jail sentence is not imposed, the college will have to decide what disciplinary action to take, and after an acquittal the college will have to determine how to proceed.
Colleges will always be involved in investigating and adjudicating sexual assault complaints, as they must. And while the federal government—and the states, and university governance bodies—can and should do more to set and enforce high standards for such processes, the ultimate obligation for meeting them rests with the campus, and with the individual faculty, staff, and students tasked with the responsibility of putting them into action.