Reforming Rape Policies on Campus

Campus rape is finally receiving the attention it merits. But efforts to address the problem are developing in too scattershot a fashion, largely because of widespread confusion about the role of the university in responding to sexual assault.

Institutions of higher education cannot substitute for a functioning criminal justice system, where the interests of the state are vindicated. Nor should they try to replicate the civil justice model, in which plaintiffs sue defendants to vindicate their own interests.

Rather, universities have interests that are distinct. Their response to sexual assault demands a focus on their core mission: providing education in a manner that does not discriminate based on sex. This imperative should guide comprehensive institutional reform.

For example, because colleges have an obligation to provide an environment in which all students are able to learn, preventing sexual assault — and, for that matter, gender-based misconduct of any kind — is critical. The goal is not to place the burden of prevention on women by instructing them how to behave; this approach only exacerbates inequality on campus. Universities must instead commit to eradicating gender violence along with the racism and sexism that sustain it.

Next, colleges can readily offer a range of support for students who have experienced sexual violence. Administrative measures — including academic accommodations, mental health services, changes in campus housing or dining locations and transportation services — can often help students successfully continue with their education. This mandate falls squarely within the university’s domain.

Last, colleges must hold accountable those found responsible for sexual assault. A formidable challenge is to create a set of fair procedures for adjudicating contested claims. (The American Law Institute, of which I am a member, is currently working to provide needed direction in this area.) Procedural justice improves outcomes and fosters legitimacy, trust and citizenship, all of which are vital to a thriving academic community.

In the movement to address sexual assault, we should not ask college administrators to become prosecutors or plaintiffs’ attorneys. Nor should we expect academic institutions to compensate for glaring deficits in the criminal justice system’s response to rape on and off campus; these failings must be separately tackled. But we can surely demand that universities advance their mission to provide an education free of discrimination.