WASHINGTON — Sens. Kirsten Gillibrand and Claire McCaskill, who led sweeping changes in how the U.S. military handles rape cases, now want to increase the number of prosecutions for sexual assault on college campuses.
The lawmakers are preparing legislation related to campus sexual attacks, including the controversial issue of how police, prosecutors and state laws treat victims of rape, said Gillibrand, a Democrat from New York.
Students across the country have filed complaints with the Education Department, alleging their colleges have violated federal regulations on sexual violence. While planning to bolster these campus-based protections, the senators’ plans also include encouraging victims to take their cases to police, Gillibrand said.
“The schools must, under Title IX, have a safe environment and they must report attacks under the Clery Act,” Gillibrand said in an interview in her Washington office. “You have a second track under law enforcement, and we’re going to work on both.”
McCaskill is planning Senate hearings this year on campus sexual assault, and Gillibrand said the topic is ripe for study by the Government Accountability Office, Congress’ investigative arm. The two are calling for sexual-assault data to be more accessible to prospective students and their parents, perhaps in school ratings.
Under Title IX, the law that bars gender discrimination in education, colleges must work to prevent campus sexual assaults and investigate incidents that are reported. Generally, the cases are heard by designated school administrators, who can mete out suspensions, expulsions and other punishments for students determined to have violated school rules.
College assault victims have organized and pushed their schools to beef up enforcement partly because of dissatisfaction and fear of the treatment they get from the criminal justice system, said Laura Dunn, founder of SurvJustice, a victims’ rights group.
“Our system fails repeatedly,” Dunn said in an interview. “We only prosecute stranger rapes, our laws don’t acknowledge what consent really means, we ignore alcohol-intoxicated sexual assaults, and we blame victims.”
Until McCaskill and Gillibrand started their legislative push on policies in the armed forces, commanders were able to overturn military court convictions of sex offenders, and sexual-assault victims were represented by military prosecutors. Since the law they championed passed in December, commanders no longer have the right to overturn those convictions, and victims are represented by independent counsel.
Some state rape laws are complicated and can discourage prosecutors who are unfamiliar with them, said Jennifer Long, director of AEquitas: The Prosecutors’ Resource on Violence Against Women, based in Washington. While these laws could be sharpened, prosecutors have options for pursuing cases in almost every instance, Long said.
“The biggest reason these laws aren’t used is because of bias against victims or misunderstanding of how crimes are perpetrated,” Long said. “There’s a belief that cases can’t be won, and they can be won.”
Among the 50 states and the District of Columbia, only 17 explicitly prohibit rape involving penetration without consent, Long said. In the remaining jurisdictions, if the victim is intoxicated and doesn’t consent and no force is used, some rape laws might not apply. These cases may still be charged under existing statutes, depending on the circumstances, Long added.
Such laws contain “an incomplete definition of consent,” McCaskill said in a May 19 roundtable discussion in Washington with victims’ rights advocates and college officials. “How can we incentivize states to update their models of consent?”
Even in New York, with one of the biggest police departments in the United States, sexual-assault survivors complain that police investigators treat them with bias, said Tracey Vitchers, a spokeswoman for Students Active For Ending Rape. A New York Police Department investigator questioned the validity of a Columbia University student’s claim of being sexually assaulted because she previously had consensual sex with the same man, the Columbia Spectator student newspaper reported on May 16.
“If there were better training and resources, it could be additive, but currently I don’t know how supportive local law enforcement is,” Vitchers said in an interview.
NYPD officials declined to comment on the case, saying it was under investigation by the Manhattan Special Victims squad.
While some police departments and prosecutors’ offices have specialized sex crimes units, there are many that still lack the training and resources to deal with assault victims, said Gina Maisto Smith, an attorney with Pepper Hamilton in Philadelphia who advises colleges on campus safety.
After an investigation of how rapes at the University of Montana in Missoula were handled by campus officials and police, the Justice Department required local law enforcement to improve their response to sexual assault.
“Law enforcement officials who don’t have an informed understanding of the impacts of sexual violence can create barriers to reporting crimes,” said Smith, a former sex crimes prosecutor. “Dedicated training and education increase the likelihood of participation in the criminal process.”
About 40 percent of rapes are reported to police and 3 percent of offenders serve jail time, according to data from the Justice Department compiled by the Washington-based Rape Abuse & Incest National Network. Sex offenders won’t be deterred from repeat assaults unless they have a realistic fear of punishment, said McCaskill, a former sex crimes prosecutor from Missouri.
“The vast majority of these perpetrators aren’t even getting a criminal interview,” McCaskill said at the roundtable forum. “There’s a chicken-and-egg problem here.”
Some college officials who provide victim support must keep their cases confidential. Requiring more of these personnel to report incidents to police might increase the number that are prosecuted, McCaskill said at the discussion. Students might be required to “opt out” of reporting their assaults to police if they don’t want to be identified, she said.
“We want the sexual-assault survivor to have great power as to whether the case is criminally investigated,” she said. “At the same time, there’s a public safety duty of people who work at the university to protect other people from these crimes.”
California Democratic Assemblyman Mike Gatto of Los Angeles introduced a bill this year that would require campus police and employees to report assaults to local law enforcement. Advocacy groups prevailed on him to include an “opt out” provision.
Gatto added that provision to the bill, which needs approval from an appropriations committee, which he chairs, before going to the full state assembly and senate.
“There’s a person-by-person difference of attitude about the police,” Gatto said in a telephone interview. “You can imagine someone in a small town who doesn’t want that level of scrutiny, or others who don’t want to interact with the police for their own reasons.”
Unless well thought-out and explained, mandated reporting to police might have a chilling effect, SurvJustice’s Dunn said. Victimized students may avoid seeking support services for fear their cases might be prosecuted against their wishes, she said.
“There are victims reporting and their cases are mishandled,” she said. “They know it in their bones that it isn’t safe.”