The day after her attacker was sentenced to six months in county jail, the woman who was violently sexually assaulted by former Stanford University student Brock Turner provided her victim impact statement to the online site Buzzfeed for publication (http://UBmag.me/bf). That statement, which immediately went viral, should be required reading for every college and university administrator.
Although Turner’s prosecution played out in a California courtroom, the issues identified by the victim in her statement are highly relevant to college and university sexual assault investigations and adjudications. Schools are engaged in a high-stakes effort to fairly and justly address sexual assaults on campus. In order to do so, they must have a comprehensive plan for addressing each of the issues raised in this victim’s powerful statement.
In light of what we have learned from the Stanford victim’s statement, college and university administrators should consider the four lessons below and work to incorporate each of these lessons into their sexual assault investigations and adjudications.
The necessity of parallel proceedings
When sexual assaults occur off-campus or do not involve a student victim (as in the Stanford case), schools may be tempted to take a backseat and allow local law enforcement to handle the investigation, victim assistance and adjudication. To do so, however, would fail to protect students and run afoul of Title IX’s requirements.
First, the slow pace of the criminal justice system means that even when defendants are found guilty and punished, their punishment will not immediately remedy on-campus public safety issues or hostile environments that may result from sexual assaults. As Stanford demonstrated with its quick response to the victim’s sexual assault, schools must act promptly after an assault occurs to protect the safety and well-being of their students, regardless of whether there is an ongoing criminal proceeding.
Second, Title IX requires schools to conduct their own investigations even if there is an ongoing criminal investigation. Any school that knows, or reasonably should know, about a case of sexual assault must promptly investigate to determine what occurred, and then take appropriate steps to resolve the situation, regardless of whether a Title IX complaint was filed. While schools are permitted to temporarily delay the fact-finding portion of their investigation while law enforcement gathers evidence, they must take immediate interim measures to protect the victim/s and students on campus. Schools that fail to conduct their own investigation while a criminal investigation is ongoing not only fail to protect their student body, they also render themselves vulnerable to a Title IX enforcement action.
Due process in Title IX proceedings
One of the more jarring passages in the victim’s statement detailed how she went through the gut-wrenching process of preparing for and being cross-examined by the defendant’s attorney during the trial. As painful as it may be for the victim, our criminal justice system guarantees defendants certain due process rights, including the right to cross-examine witnesses and present evidence in their defense.
While schools are not required to have the same robust procedural protections that are present in the criminal justice system, they can be held liable for denying accused students adequate procedural protections during sexual assault investigations and adjudications. The U.S. Department of Education advises schools to have a “balanced and fair process that provides the same opportunities to both parties.”
However, determining how to integrate and maintain that balance in sexual assault investigations and adjudications is a nuanced process in and of itself. Schools must confront difficult questions—such as how they will allow accused students to offer
an adequate defense while still protecting the complainant from emotional and psychological damage—in order to conduct proceedings that do not infringe on the rights of disciplined students.
Rules and training on how to evaluate evidence
Those who read the victim’s statement likely recoiled at some of the questions that Turner’s attorney posed to her, which examined “issues” such as her sexual activity with her boyfriend and whether she had a “history of cheating” on her boyfriend.
Beginning in the 1970s, evidence of a victim’s sexual history has been largely barred by federal and state rape shield laws, and expert judges and attorneys are extensively trained on what is and is not permissible. While schools, unlike courts, are not designed to be adjudicative bodies, schools must adapt to this responsibility of implementing rules on how to handle and evaluate relevant evidence, including guidance on the admissibility of an assaulted student’s prior relationships or sexual history.
Colleges and universities must also train those involved in Title IX processes, including investigators and adjudicators, on how to impartially evaluate and weigh evidence. Finding the balance between allowing evidence for an adequate defense and protecting the sexual history of a victim from being exposed (and knowing how to apply those rules) is difficult. Prosecutors, defense attorneys and judges alike dedicate countless hours and
resources studying how to handle evidence in sexual assault cases. Schools should take a cue from the criminal justice system and invest their own time and resources on
developing balanced evidence rules and on training investigators and adjudicators on those rules.
Crafting a system of effective remediation and discipline
The victim wrote, “The fact that [Turner] was an athlete at a private university should not be seen as an entitlement to leniency, but as an opportunity to send a message that sexual assault is against the law regardless of social class.” One of the principal goals of criminal sentencing is general deterrence—deterring future crime by setting an example of the criminal’s punishment. Many believe that Turner’s sentence wholly failed to achieve that goal. In light of the outcry over Turner’s sentence, schools must consider the goals of their disciplinary proceedings and how to craft sanctions that can best achieve those goals.
Sanctions should be appropriately tailored to reflect the severity of the offender’s actions, help rehabilitate the offender and comport with due process considerations. Moreover, schools must be cognizant that under Title IX’s requirements, just taking disciplinary action against those found to have committed sexual assaults is not enough. In cases of student-on-student sexual violence, effective remediation may also include providing counseling for the complainant, adjusting the complainant or the perpetrator’s living arrangements, or arranging for the complainant to have extra time to complete a course without a penalty.
Additionally, schools and universities may need to institute remedies for the broader student population to eliminate hostile environments that may exist on campus. Failure to apply appropriate sanctions and to effectively institute remedies exposes schools
to lawsuits from both the victim and the offender, as well as a Title IX enforcement action.
A wake-up call
The Stanford case is just one example of the tragic consequences of sexual assault. But the victim’s eloquent and powerful statement is a wake-up call that reminds us that schools can and must do better at investigating and adjudicating sexual assaults. Our criminal justice system’s policies and procedures for sexual assault cases have evolved and improved over time, and no doubt will continue to be refined. Likewise, schools’ efforts to develop a working investigative and adjudicative system will take time and will not be easy, but it is a challenge that they must accept.
Anne M. Tompkins is a partner at Cadwalader, Wickersham & Taft and former United States attorney for the Western District of North Carolina; Joseph Jay is a special counsel at CW&T; Colleen Kukowski is an associate in CWT’s Washington, D.C. office.
