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Foss: Colleges fail rape victims and the accused

Foss: Colleges fail rape victims and the accused

Foss: Colleges fail rape victims and the accused
The Union College campus in Schenectady
Photographer: Gazette file photo

In recent years, much of the discussion surrounding campus sexual assault has focused on the accused. 

A growing number of young men have been fighting back, filing lawsuits against the colleges that found them responsible for sexual assault. Many of these suits argue that the college hearing process was unfair and failed to provide basic due process protections.

This surge in litigation has received a lot of attention, perhaps because of its seeming novelty. 

After years of hearing that colleges and universities don't take sexual assault seriously enough, now we're hearing that schools are overreacting to complaints and depriving students of their rights. 

That's a neat narrative, but it doesn't tell the whole story. 

Schools throughout the U.S. have been accused of mishandling sexual assault complaints by young women who say they were raped. 

Last week The Daily Gazette reported on the second lawsuit filed against Union College in four months by a female student accusing the school of mishandling her rape claim. 

This latest lawsuit claimed that in recent years "no less than five women have reported their experiences of sexual assault to the college in the hopes that their complaints would be properly investigated and handled by Union" only to find that the complaint "fell on deaf ears." 

Now, I can't speak to whether these young women are telling the truth. 

Nor can I speak to whether the young men who claim that the sexual assault complaints against them were mishandled are telling the truth. 

What I can say is that the proliferation of lawsuits filed by students accused of sexual assault and those alleging that they were raped suggests that the way colleges investigate rape complaints is riddled with problems. 

Among other things, it raises real questions about how well the process works for anyone, and whether colleges and universities have any business adjudicating rape cases at all. 

In 2011, the Obama administration issued a 19-page letter directing colleges and universities to ramp up their adjudication of sexual misconduct, or risk losing federal funding. Among other things, schools were advised to use a weaker standard of proof to assess claims -- a change that made it easier to find students responsible for sexual misconduct, though it was later withdrawn by current Secretary of Education Betsy DeVos. 

As Jeannie Suk Gerson, a Harvard law professor, put it in an essay for The New Yorker, schools reacted to the Obama administration directive with "panicked overcompliance. In renewing their attention to the rights of alleged victims of sexual assault, many began to disregard the rights of accused students. … It has become commonplace to deny accused students access to the complaint, evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses."  

In other words, the process is deeply flawed.

As to whether it can be fixed, well, I have my doubts. 

The proper place for determining whether a student committed a violent crime is a court of law, not a college panel composed of faculty and administrators. 

Of course, the criminal justice system has its own failings when it comes to taking sexual assault victims seriously. 

But that doesn't mean the solution is a separate, campus-based disciplinary system, or that a campus-based system is capable of meting out justice. 

Based on the stories I've read, colleges simply aren't up to the task of determining who's right or wrong in many of these cases. 

Colleges handle student claims of sexual misconduct because they have to: Under the federal Title IX law, which prohibits sex discrimination in education, schools are required to investigate complaints of sexual assault or harassment, and take steps to protect students. 

Which does make sense. 

Colleges and universities do have a responsibility to protect their students and mete out discipline when a campus rules have been violated. 

But the system that's in place right now is a mess.

It should be possible to protect the rights of the accused and ensure that victims are treated fairly and taken seriously. Right now, schools are failing both the accused and the victims, to the benefit of no one. 

Reach Sara Foss at [email protected]. Opinions expressed here are her own and not necessarily the newspaper's. 


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