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The New Sexual Assault Response Rules for Colleges Require Them to Behave Like the Criminal Justice System. Here's Why That's a Problem.

U.S. Secretary of Education Betsy DeVosU.S. Secretary of Education Betsy DeVos. Photo by Gage Skidmore from Peoria, AZ, under CC BY-SA license. This week, new rules go into effect dictating how colleges and universities must respond to allegations of sexual assault on campus. The U.S. Department of Education released the final version of these rules in May, and since then, a number of lawsuits have been filed, some asking for more time to implement them. But as of now, the August 14 deadline still holds, and colleges are juggling the implementation of the new rules with planning for what is likely to be one of the most challenging semesters they have ever faced.

Among other things, colleges will be required to hold live disciplinary hearings during which those who have been sexually assaulted and those accused of assaulting them present live testimony and can be cross-examined. Though there are limits on this process – advisors to the students do the questioning, not the students themselves, and a hearing officer will decide if the questions are relevant – it creates an opportunity for more personal attacks than are seen in the criminal justice system, while pushing colleges to behave like that system. That’s not good for students.

One problem rarely mentioned in discussions of the new rules – which create a more litigious and adversarial process – is that the criminal justice system is rarely effective in achieving justice for victims of sexual assault. As a research scientist who has studied this issue extensively, I’m familiar with the many obstacles that victims face: Most don’t report sexual assault to authorities to begin with, and those who do face a secondary victimization as they must recount their experience over and over again to police, prosecutors, and other court officials. Challenges to victim credibility come on many fronts; those who have a history of emotional or mental health problems, who were assaulted by people they know, in situations that involved consumption of alcohol or drugs, or did not report it immediately tend to see their complaints discounted or the cases dropped before adjudication. (The exceptions are cases that involve serious physical injury or the use of a weapon.) This case attrition happens either because victims have been discouraged from cooperating further or because prosecutors do not see the case as credible, or think a jury will be unlikely to convict.

If colleges are required to adopt criminal justice-like procedures, many of these same factors that contribute to case attrition will have a chilling effect on reporting and help-seeking. Few complaints will move forward, and the safety of students and their access to an education will be further jeopardized. Many victims won’t want to pursue a process that involves repeating their account and personal details in a public hearing at the school where the assault occurred – especially if the person who assaulted them has more power or clout, like a star athlete – and answering questions proffered under the direction of that person. Many will decide, at some point along the way, it’s simply not worth it.

A criminal justice model also doesn’t make sense for colleges, whose mission is to educate, not adjudicate. Their goal is to foster norms against sexual violence and harassment, but they will end up being complicit in the re-victimization of those who report.

Along with colleagues and funded by the National Institute of Justice of the U.S. Department of Justice, I recently completed a project on Responding to Sexual Assault on Campus. In the course of our research on 969 colleges across the US, we spoke to 47 Title IX coordinators, many of whom felt strongly that the way they handle sexual assault cases – including sanctioning – should be in part an educational process, in keeping with the mission of their institution to educate. Addressing complaints by holding hearings and cross-examinations doesn’t fit with that mission, and it’s also inconsistent with how colleges handle other violations of student conduct codes.

The Title IX coordinators we spoke to faced lots of challenges. The greatest challenge for many was building capacity to respond to reports of sexual assault. They voiced a critical need for more well-trained investigators, whether from within their college community, public safety, or external sources. The new rules (in some cases rules which conflict with their state laws and current policies) will require even more resources. Unless Title IX coordinators are provided with strong institutional support and visibility including adequate funding, staffing, and training – all of which will be a challenge at institutions wrestling with responses to COVID-19 – they will have to try to do more with their already meager resources. This isn’t a recipe for thoughtfully carried out processes that result in justice for students.

We’ll learn more over the coming months about the issues that will arise from these new rules. For example, how will the complex interplay of state laws, Federal Circuit court rulings, guidance from lawsuits, and institutional mandates affect the implementation? What effect will the pandemic have? There will be details to iron out, but the movement of Title IX processes toward a criminal justice model is a step in the wrong direction. It is also the biggest threat to ensuring that women are given equal access to education.

Linda M. Williams, Ph.D., is director of the Justice and Gender-Based Violence Research Initiative at the Wellesley Centers for Women at Wellesley College. Her research focuses on the justice system response to sexual violence. In 2020, she concluded a federally-funded study of college responses to sexual assaults on campus.

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Eliminating Violence Against Women

I spend a lot of time thinking and talking about our research on sexual violence case attrition and why most rape cases do not go forward to prosecution. The way that cases move through the criminal justice system has been a concern to victims, practitioners, and researchers for the last 40 years. Our recent findings on sexual violence case attrition make it clear that most sexual assault reports made to the police do not result in the arrest of a perpetrator or in any prosecution. This isn’t because no one knows who the perpetrator is—it is not a reflection of random stranger-danger. Women are assaulted, raped, and murdered by someone they know much more often than by a stranger. This is true across the globe and yet the response to violence remains weak.

Societal response to reports of sexual violence reflects deep-rooted cultural ideals about women and a feminine ideal. In our research, we found that cases are less likely to move forward when women have engaged in behaviors that signal “risk taking" like drinking alcohol or are of lower status and reputation. It is the “ideal” woman who is more likely to be believed—the conservatively dressed woman, the woman of means who was shopping or walking home from her professional position, the woman whose career and family life reflects strict adherence to social norms. So, even while we celebrate a changing cultural environment that purports that women now have more agency, independence, and are “permitted” to embrace more of the behaviors that have always been okay only for men, women who were out alone and who had been drinking when they were assaulted are less likely to find that the man who raped her is arrested or prosecuted.

Now, on the International Day for the Elimination of Violence Against Women—and after a week of more incidents of violence against women—both sexual violence and gun violence--- and amid concerns about the policy changes taking place on college campuses that will make women’s lives more difficult; and accounts of survivors of sexual assault who have been silenced, denied due process, and pushed back against on many fronts, we know we have not yet eliminated violence against women. Further, gender-based violence—violence that happens to women because they are women—is as blatant and as bigoted as violence perpetrated against one religious group. We are talking gender-based violence and femicide. How far have we really come? And what is needed to keep moving us closer to truly eliminating gender-based violence?

We have evidence of positive changes in rape law and sexual violence prevention, in care and support for survivors, and in bringing this issue of gender-based violence to the forefront both nationally and globally. We know that reductions in gender inequality can happen—this may occur when we elect more women to government leadership and we reverse the reductions in government social spending in areas such as health and education. Internationally, there are many leaders, advocates, and research that help us move the action against gender-based violence forward.

Now we must focus attention on turning research into action and promoting the changes needed in the community. Change requires that we not reify one form of knowledge over another. It’s no surprise to advocates that victim characteristics and victim behavior are associated with whether or not charges of rape go forward to prosecution. Recently in Ireland, an individual was acquitted after senior counsel for the defense remarked on the fact that the young female complainant was wearing thong underwear. This led to protests, the display of women’s underwear, and the hashtag #ThisIsNotConsent. Meanwhile, it is reported that an independent review conducted by a legal expert who is examining how rape and sexual assault cases are handled in Ireland is due at the end of the year. While such data will no doubt be valuable as are similar reports from South Africa, the United Kingdom, and the U.S., these provide evidence of what women have known all along--that what women wear or what they drink is used to sway the court system and jurors and to reinforce common stereotypes about men, women, and rape.

Clearly we need to assure that funds for implementing prevention programs and innovative campaigns directed at ending violence against women are available, and that such programs and the research conducted on their impact must continue to draw on feminist roots. All such work on gender-based violence also must be informed by intersectionality—the product of Black women’s activism and scholarship. For example, Tarana Burke founded the #MeToo movement that later became a global phenomenon to raise awareness about sexual harassment, abuse, and assault in society. #MeToo supports all who experience sexual violence and grounds this work in the real experiences of all women—young and old, Black, white, and brown, rich and poor. Research, undertaken in a setting that allows the linking of activism with the research, and that highlights the importance of data as a social change agent, is a necessary step to ending gender-based violence. A call to link activism and research should not be confused with activist research that seeks to prove a particular hypothesis. Sound principles of scientific research must be followed. However, we must assure that the voices of survivors and the skills and approaches of grass roots organizations underpin this work. These efforts are critical to success in eliminating violence against women and girls in all communities across the globe.

Linda M. Williams, Ph.D., is director of the Justice and Gender-Based Violence Research Initiative at the Wellesley Centers for Women at Wellesley College. Her research focuses on justice system response to sexual violence, commercial sexual exploitation of women and children, human trafficking, intimate partner violence, and child maltreatment.

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#MeToo is a step forward, but it's time for bystanders and perpetrators to stand up

I applaud the strength and solidarity of the women (and men, too) who are asserting with the hashtag #MeToo, that they are among the estimated one in five women who have been sexually assaulted and one in four working women who have experienced sexual harassment in the workplace. Hundreds of thousands of women are assaulted each year in the U.S. Enough IS enough. What I now want to know is how many men will stand up against it. Maybe things are changing… It did not take long before we saw that men were writing #IHave and now as I suggest #IWill which can reflect steps they are taking and will take to end the role they have had in promoting gender-based violence and sexual assault, to assert that they will NOT stand by while sexual harassment and assault happen, that they will call it out when they see it.

Classic rape is recognized as a crime --- when a male stranger attacks a woman at night, kidnaps her, or breaks into her home, and then forces her at gunpoint to submit to sexual acts it is (usually) seen as rape. But this does NOT describe most rape, nor are most perpetrators of sexual assault strangers. Those of us working in this field have recognized for years that most rape occurs at the hands of someone the victim knows. While some of what draws our attention today is workplace sexual harassment not involving sexual contact, clearly in the context of the Harvey Weinstein allegations we are hearing about actual sexual contact, forced sexual contact, contact against the will of the victim. The lawyers can tell you what statute covers this behavior in your particular state, but when it occurs without the consent of the woman or child or when she is unable to consent, this is a crime. A serious crime that can result in jail time, a crime which should result in the attention of the criminal justice system-- though nine times out of ten it does not.

We have known for decades that most rape is perpetrated by men known to the victim; study after study have found that many hundreds of thousands of women and girls (as well as many men and boys) are sexually assaulted each year. So why are we still surprised to hear about it today? (Yes, we are doing better responding to sexual assault and, yes, it is gratifying to see the support that the women who have come forward to report what has happened to them in Hollywood are now—mostly—receiving. But year after year after year this is still with us.)

Again and again we see a backlash against the victims. Perhaps our system of justice will prosecute those who rape very small children or 97-year-olds, or those who assault women who are the valued mothers and daughters of powerful white men, but most sexual assault is not reported and, even when reported, does not lead to an arrest or prosecution.

We must remember it is not only Hollywood producers who sexually assault and not only young actors who are the victims. The rapists and perpetrators of sexual assault include:

  • the boss of a 17-year-old working in a fast food restaurant who needs her job so she can go to college, or
  • the supervisor of a 30-year-old mother who is a dishwasher, waitress, cashier, salesperson and needs her low wage part-time job to feed her family,
  • the manager who knows his employee can’t quit or take the chance of being fired so she won’t report or can’t find the time to go to the police or to court to press her case,
  • the manager, the frat-boy or the professor who knows the victim won’t risk the shame and humiliation of reporting and this won’t make it dangerous for him to continue assaulting her or others,
  • The senior colleague of an assistant professor who will decide her fate on the promotion and tenure committee,
  • The fellow student, the upperclassman or the star football player who knows his attention will flatter the first-year student or the jock who knows after she has had a lot to drink that he has a good chance of getting away with a sexual assault-- he knows that when she passes out in the dorm room, or by a dumpster in the parking lot, or no matter what happens to her, she will be too afraid to scream out or report what this star athlete has done,
  • Or a bus driver or taxi driver, priest, teacher, uncle, military superior, or neighbor who assaults the mother of his child’s best friend,
  • Finally there is the ex-boyfriend or partner who thinks that he is entitled to sex because she consented in the past, because he knows her secrets and can prey on her fears, insecurities, or her shame.

This is the reality of rape—a crime most likely perpetrated by a man known to the victim – an acquaintance, “friend,” classmate, employer, or partner. Such rape is more common than stranger rape. In spite of extensive data showing that rape is underreported, rarely falsely reported, and even after many Harvey Weinsteins--too many to count-- many still hold inaccurate beliefs about the nature of rape, when and to whom it happens, and its impact on the victim—the women who are young and old; Black, white and brown; rich and poor.

Yes, it is notable that women can now join in and feel supported enough to tweet #MeToo and in so doing make it clear that rape is not rare, that rape can happen to anyone. But now, it is also time to ask the bystanders and the actual or wanna-be perpetrators to stand up and say #IHave to indicate “I sexually assaulted someone,” “I stood by while my friends or classmates or colleagues did it,” or “I know men who bragged about it.” And use the hashtag #IWill to assert they will no longer stand by and do nothing but instead that they will stand up and support victims and survivors. #IWill stand up and call out these behaviors even when powerful men state “I just start kissing them. I don't even wait...when you're a star they let you do it. You can do anything. Grab them by the pussy. You can do anything."

Linda M. Williams, Ph.D., is senior research scientist and director of the Justice and Gender-Based Violence Research Initiative at the Wellesley Centers for Women at Wellesley College.


Need help or assistance? In the U.S., call the National Sexual Assault Hotline at 800.656.4673.

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Guest — Vickey Cornelison-Grant
Thank you for this very thoughtful post!
Wednesday, 18 October 2017 19:26
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VAW: A Call to Action

Yesterday was the International Day for Elimination of Violence Against Womenis the glass half empty of half full? 

It is clear that this day calling for the elimination of violence against women is still necessary—in fact, it is crucial. Despite notable advances, many millions of women still suffer victimization and gender-based violencephysical, sexual, emotional, and psychological. Female genital mutilation, child marriage, marital rape, and other forms of gender-based violence (GBV) remain epidemic and have serious psychological, emotional, and economic consequences.

Skepticism about reports of sexual violence is still with us. Few rapes are reported and only a small proportion of these cases lead to arrest and prosecution. Indeed we still live in a “rape culture” where tales of sexual assault are dismissed as “locker room talk” and perpetrators are not held accountable for their behavior. Yes, there have been countless and pronounced steps forward in the past 40 years (which is when I started my work in this area.) United Nations (U.N.) and governmental proclamations against violence against women (VAW) have proliferated and much research on prevention and consequences of GBV has been funded and has resulted in evidence-based practice. We have witnessed reform of laws against sexual and domestic violence, new policy and practice as it pertains to prevention and intervention, and new and much more widespread services for survivors.

Not long ago sexual assault and domestic violence were hidden behind closed doors or kept secret as shameful and somehow the fault of the woman or girl. Today, while such misguided opinions and judgmental attitudes still exist, we have witnessed significant changes in the U.S. and in many countries around the world. Violence against women is a topic that is no longer hidden. Attention is focused on GBV across the globe, in war zones and in the aftermath of conflict or disaster. We can note the successes of the Violence Against Women Act, the U.S. Department of Justice Office on Violence Against Women, and the more recent White House Task Force to Protect Students from Sexual Assault. Also there are efforts to curb and eliminate domestic sex trafficking and human trafficking in the U.S. and around the globe. Social media also keeps this issue in the forefront and no longer hidden, we are counting dead women and we #sayhername aloud recognizing the intersections of gender, race, and violence.

We must celebrate the achievements and thank those who have worked so hard to make these advances… but we must not lose sight of the fact that there is much work to be done. It is clear today that while the governmental and international organizations have done and can do much to support changes to eliminate violence against women, this work has always needed the work of many hands. And in our future, there is likely continued fluctuation in support of the elimination of all forms of VAW. As always, we need to assure, pledge, and guarantee continued support and funding of this work—support that will come from many donors-- individuals, centers, working groups, and private foundations. Today we must re-double our efforts to encourage support for the elimination of violence against women from everyone—every woman and every man.

#sayhername | @JGBVR_wcw | #orangetheworld | @SayNO_UNiTE | @WCWnews | #givingtuesday… add your recommended links in the Comments section.

Linda M. Williams, Ph.D. is a senior research scientist and the director of the Justice and Gender-Based Violence Research initiative at the Wellesley Centers for Women at Wellesley College.

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"The Hunting Ground”—Ground zero for changing social norms on sexual assault?

This week we recognize the International Day for the Elimination of Violence against Women. Indeed, gender-based violence impacts women across the globe. Rape in conflict zones or of refugees or of child brides are all horrific and this day makes it clear that violence against women is still a pressing problem—and this includes sexual violence on college campuses.

Today we applaud the courageous women who created, produced, and spoke out in the film “The Hunting Ground.” This movie makes it clear that although sexual assault on campus occurs in the ivied halls of elite U.S. institutions (as well as in the big 10, in religiously affiliated, secular or community colleges) it is not simply one of those #firstworld problems which we must apologize for worrying about in the face of all the tragedies in the world.

“The Hunting Ground” demonstrates the extent to which sexual assault on campus represents not only the evil one person commits against another but also places the harms of campus rape within the context of the institutions. When an institution does not take steps to end sexual violence then they can be seen as providing institutional support for rape and rape culture. While, of course, not all schools fail in this way, many do and the work of the organizers of www.endrapeoncampus.org has brought this to the attention of us all.

The sexual assault of college students—of women and some men—is a denial of access to education. If permitted to continue it relegates women to a marginal status and basically is a way of telling women to “go home.” It gives this message to some women: “If you can't take what is being handed out then you can give your seat at this university to someone who can—to a male” (the male you took it from when women decided they should be able to seek an education so they could become lawyers, doctors, engineers, teachers, writers, political scientists--- be women who will make a difference in the world.) Carol Tracy (executive director of the Women’s Law Project, who was honored by the American Society of Criminology just last week for her fight for justice) called the women of “The Hunting Ground” courageous and amazing. Last week Carol helped me to recognize and, yes, maybe even believe, that this film and more importantly the work of these women is the ground zero for a cataclysmic change in how we respond to rape and a path to changing social norms about rape. Certainly this is a turning point in the lengthy battle to stop sexual violence and to end rape. As such, the impact will hopefully go far beyond campuses and the U.S. It is a strong message to victims and survivors throughout the country and throughout the world that they are not alone.

Since Carol and I started working in this field in the early 1970s there has been much change. Many steps forward. In the 1970s there was almost no recognition of the seriousness of the problem of rape for women and men of our land (well except for the brutal legacy of the way black men suspected of rape of white women were treated—an important part of our history we need to return to on another day because I suspect it plays a role in the conflict around men women and rape in the U.S. today.) In the early 1970s Carol was involved in a sit-in against rape that occurred at a fraternity and I was involved in research that led to the discovery that rape was much more likely to take place at the hands of someone known to the victim than to involve a stranger.

Since the 1970s we demonstrated the importance of evidence and rape kits (and then some folks “forgot” to test them) and rape crisis centers were started and researchers began to pay attention to this crime and to victimization. Laws were changed and victims were supported in the process… But in many ways it had begun to feel like we had hit a wall on the progress needed to end rape, to find justice for the survivors and to eliminate violence against women. The film, “The Hunting Ground” and the courageous and ground breaking work of Andrea Pino and Annie E. Clark and all the survivors who have made their voices heard make me think—change will come ... A new wave is breaking. “The Hunting Ground” is ground zero for changing norms around sexual assault and eliminating this form of violence against women.

Linda Williams, Ph.D. is co-director of the Justice and Gender-Based Violence Research Initiative at the Wellesley Centers for Women at Wellesley College.

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Views expressed on the Women Change Worlds blog are those of the authors and do not represent the views of the Wellesley Centers for Women or Wellesley College nor have they been authorized or endorsed by Wellesley College.

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