Portside Date: November 28, 2014

Author: Dahlia Lithwick

Date of source: November 24, 2014

Slate

Last Wednesday, Rolling Stone magazine published a graphic and horrifying story on a gang rape that allegedly occurred at a University of Virginia fraternity house in the fall of 2012. The student, named Jackie, did not report her assault to the police but did share her story with a UVA dean responsible for dealing with sexual assault. Jackie later tried to find statistics about sexual assaults at UVA but couldn’t find any—in part because, as she contends, a university dean later told her, “nobody wants to send their daughter to the rape school.” Even after further complaints about gang rapes at the same fraternity, the school apparently did not open an investigation until this year.

The piece exploded the national media and the Internet, and the UVA community has exploded right along with it. The pretty little college town that was shattered this fall by the abduction and murder of Hannah Graham, and has yet to recover from the murder of Yeardley Love in her apartment in 2010, is eating itself alive over what has become a national scandal: Parents send their daughters to colleges where they may be raped and violated by young men who will never be held to account.* The gist of the piece is that survivors of rape and sexual assault are shuffled into a system that all but encourages them to stay silent and avoid the criminal justice system. The even more devastating accusation: Everyone at UVA knew this was a rape school and nobody did anything to stop it. The unspoken revelation: Your kids’ school? Probably a rape school, too.

The initial responses from the school fueled the fire. A passive statement issued by President Teresa Sullivan was full of deflection and jargon, with a promise to have the police investigate the substance of the Rolling Stone charges. Then came Rector George Martin’s staggering decision to appoint as independent counsel a former federal judge named Mark Filip. Immediately after which it was revealed that Filip had once been rush chair of a different chapter of Phi Kappa Psi, the fraternity at the center of the campus’ gang-rape scandal. Filip was taken off the job the next day. Last week Phi Psi voluntarily suspended its operations. On Saturday, Sullivan announced in a letter to students and alumni that all the school's fraternities have been suspended effective immediately.

Virginia’s governor, attorney general, and other elected officials have weighed in with outrage. Students have confirmed that the “rape culture” described in the article is accurate. Campus organizers and faculty held protests, slutwalks, rallies, and town hall meetings. A midnight rally, organized by faculty, took place Saturday night. The fraternity itself was vandalized last Thursday, and protesters there were arrested over the weekend. The university issued a warning Friday about possible violent reprisals and expressed concerns for Sullivan’s safety. Finally, the glee club retired the “Rugby Road Song” a century-old fight song threaded throughout the Rolling Stone piece with lyrics like “Never let a Cavalier an inch above your knee/ He’ll take you to his fraternity house and fill you full of beer/ And soon you’ll be the mother of a bastard Cavalier!” A crowd-sourced Facebook page, created by a UVA alum, called “UVrApe Alumni Defense Fund,” to generate support for a system of outside counsel for victims raised more than $14,000 by Friday morning.

An interview by Catherine Valentine, a UVA student journalist, of associate dean of students Nicole Eramo surfaced this weekend in campus media. Eramo, head of UVA’s Sexual Misconduct Board, was prominently featured in the Rolling Stone piece as a survivor’s “best advocate and den mother.” Eramo sensitively counseled and supported victims, according to the story, but she is also implicated as the indirect cause of rape allegations going unreported or being covered up. Valentine’s interview, which predated the Rolling Stone piece, probed why no UVA students found guilty of sexual assault or rape had ever been expelled from the university, but were instead suspended (at most) and most still roam the grounds—while those caught lying or cheating are expelled through the Honor System, a code dating back to 1842 that offers draconian punishments for cheating. In the video, Eramo describes the internal UVA sexual assault investigation process and the sanctions for those found guilty: a one- to two-year suspension. Eramo also seems to suggest that, if a student admits guilt, that is enough to avoid expulsion or serious sanctions.

The interview perfectly reflects the problem UVA has constructed: Eramo was tasked with handling sexual assault in a non-criminal, survivor-centered, confidential, internal setting, and she is now on the hook for not having run a crack Special Victims Unit.     

The question I have been asked a hundred times since the Rolling Stone piece appeared is: How is it possible that a crime as serious as an aggravated, premeditated gang rape can be funneled into an internal disciplinary process? How can a felony offense be kept out of the police’s hands, and how can victims be presented with a menu of choices that includes, and even encourages, doing nothing? In a February letter to the Obama administration, the Rape, Abuse, and Incest National Network, the nation’s leading anti-rape group, wrote: “It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected … when it comes to sexual assault?”

The simple answer is that the law requires it. Title IX mandates that universities use administrative conduct processes to address sexual harassment and sexual violence. Advocates of using school disciplinary mechanisms to replace or even supplement police systems argue that criminal justice is a blunt instrument; that criminal justice processes can be brutalizing, shaming, and ineffective in sexual assault cases. The notion that survivors should be given multiple options and support for whatever choices they make is rooted in the idea that the usual police prosecution will only re-victimize her. “Women have not complained to the police because they have had good reason to fear that the police would not believe their claims,” says Anne Couhglin, who teaches gender law at UVA. “And, in cases where the survivor had been drinking at the time of the assault, she was likely to be told that her intoxication amounted to consent.”

At UVA, that system appears to have resulted in a systematic process of deflecting cases out of the criminal justice system, leaving perpetrators undisciplined and the campus unaware of what looks to be a repeated pattern of vicious rapes. Victims were given so many options, and even a violent gang rape went unreported to the police. As Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, wrote in the New York Times this fall, internal school investigations disserve both the victims and the accused in sexual misconduct cases. “Accused students are routinely denied the most basic elements of due process, such as the right to see the evidence against them and the right to confront, even indirectly, the accuser. Not only is this terribly unfair to students accused of serious wrongdoing, but it undermines the integrity of the process in a way that harms everyone involved.”

Michelle Goldberg explored precisely this question last spring in a must-read piece for The Nation. The takeaway from her reporting is that the shadow system in which school disciplinary boards handle violent sexual assault cases on campus works for nobody. Goldberg outlines the failures of these systems, starting with: “Treating rape cases as internal disciplinary matters to be handled by amateurs trivializes a serious felony.” The second pitfall, according to Goldberg, is that “campus disciplinary boards [are] more invested in protecting the school’s reputation than in seeking justice.” Which is one reason 55 colleges are currently under Title IX investigation. Finally, notes Goldberg, “defense attorneys and civil libertarians—as well as rape-skeptical conservative pundits—condemn the boards as kangaroo courts in which the accused are denied ordinary due process.”

The Rolling Stone investigation highlights the truth of all of these concerns. And UVA is not the exception in this respect—it is the rule.

A lot of incredibly complicated contributing factors must be assessed separately as we think about how to respond to the Rolling Stone piece. Fraternities are nuts. Sexual violence against women in sports, the military, and fraternities is rampant. The shame and stigma surrounding the reporting of sexual violence has not substantially lessened in the decades since we started to address it. Until we contend in a meaningful way with how violence and especially violence against women are condoned and even celebrated at the very finest institutions in America, changes in how we report or adjudicate how that violence occurs will make very little difference.

Our confusion about the objectives in addressing campus rape problems has led to confusion in the solutions we have forged. If the purpose of the current internal adjudication is to increase transparency and reporting, that runs against the most basic institutional incentive to hide bad news. If the object is to counsel and support survivors, it’s not clear that has worked very well either. And if the object is to keep the campus safe, it has failed spectacularly.

According to one Justice Department report, less than 5 percent of attempted or completed rapes on campus are reported to law enforcement. Universities attempted to create a second-tier system that bypassed that criminal justice process, softened the impact of filing a complaint, and lessened the process obligations and the fact-finding capacities of internal reviews. It worked. And in so doing, it largely failed. The question we should be asking ourselves is not simply what it is about campuses that lead the friends and counselors of the victim to discourage her from seeking help from the police and the hospital. The real question is whether, having crafted an internal system that either masks or exacerbates many of the worst features of the systems it seeks to replace, do we want to stand by it? After reading the Rolling Stone piece do we think universities are moving toward solving the campus rape problem or inadvertently colluding in hiding it.

Dahlia Lithwick writes about the courts and the law for Slate.