Jonathan Raven, the chief deputy district attorney for Yolo County, compares prosecuting college sexual assaults to a puzzle: You need enough of the pieces – a physical exam, witnesses, recorded statements, text messages – that a clear picture can emerge.
Often, the circumstances of assaults don’t allow for that; victims wait to report, alcohol fudges memories of the events, or investigators fail to conduct early interviews. Yolo County has only filed charges for about 30 or 40 percent of rape reports in the past five years, Raven said.
“We have an obligation to have a strong belief that we can prove the case beyond a reasonable doubt,” he said. “That’s an ethical standard.”
But it’s why Raven, who works closely with UC Davis, also supports adjudicating the cases through college disciplinary proceedings – something that schools across the country are under increasing pressure to do.
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Half a dozen proposals are moving through the Legislature this year that aim to increase the response at California colleges, including a minimum punishment of two years’ suspension for students found guilty of sexual assault in a campus investigation and a requirement to note that sanction on a student’s transcript.
Advocates argue that the campus system is a crucial alternative to provide some form of justice for victims who may be afraid to report to law enforcement, don’t want their parents to find out, or want action taken sooner than can occur in a lengthy legal process.
“That doesn’t mean she shouldn’t be entitled to other accommodations with classes or not have to see the accused,” said Sandra Henriquez, executive director of the California Coalition Against Sexual Assault. “She still should have the right to have all of the support and have the campus help her to complete her education.”
A backlash is growing, however, from critics who worry that schools are supplanting the criminal justice system with unfair tribunals that run roughshod over the accused. They point to proceedings run by faculty and administrators, a lower “preponderance of the evidence” standard for finding guilt, and a lack of fundamental legal protections like the right to a lawyer.
We have an obligation to have a strong belief that we can prove the case beyond a reasonable doubt.
Jonathan Raven, chief deputy district attorney for Yolo County
Those arguments gained traction in July, when a judge overturned the suspension of a UC San Diego student found guilty of sexual assault by a university panel because he was not allowed to confront and cross-examine his accuser.
“At the end of the day, you have an amateur trying to figure out if a rape has occurred,” said Joe Cohn, legislative and policy director for the Foundation for Individual Rights, a Philadelphia-based nonprofit that advocates for free speech and due process at universities. “The better approach would be to make sure predators are actually removed from society and are in jail.”
The issue of campus sexual assaults has come increasingly to the fore in the past few years, driven in large part by student activists frustrated by how their colleges were handling their cases.
Federal complaints filed at dozens of universities brought national attention, which has been magnified by high-profile incidents like the case of Emma Sulkowicz, a Columbia University student who carried around a mattress in protest that her alleged rapist had not been expelled, and the controversial Rolling Stone article about a gang rape at the University of Virginia that was later retracted.
The Obama administration has responded by launching the star-studded “It’s On Us” education campaign, requiring any school that receives federal financial aid to conduct sexual violence prevention training, and implementing new standards for campus adjudications. The U.S. Department of Education is currently investigating more than 120 colleges across the country, and a dozen in California, for how they have handled sexual assault complaints, including UC Berkeley, UCLA, Stanford University and the University of Southern California.
Schools have taken steps on their own: Over the past year, the University of California and California State University systems initiated mandatory prevention and response training for all students and employees, and set up confidential victim advocate offices on every campus. UC also adopted systemwide standards for sexual violence investigations and established services for accused students. At the more decentralized California Community Colleges, the Chancellor’s Office said it is advising local districts on how to comply with new mandates.
But the Legislature is pushing even further, building on work that began last year with a yes-means-yes consent standard for the state’s public universities that was the first law of its kind in the country. Measures this session would begin consent education in high schools and authorize colleges to identify an alleged assailant to the police if they are deemed an ongoing threat to safety.
“Being the largest state in the country, we try to set an example,” said state Sen. Hannah-Beth Jackson, D-Santa Barbara, author of a bill allowing community colleges to join UC and CSU in disciplining students for off-campus assaults, which was signed by Gov. Jerry Brown this week. “We need to make sure we start addressing this issue with a much more aggressive approach.”
Assemblyman Das Williams, D-Santa Barbara, introduces the minimum punishment and transcript proposals, as well as another that would allow community colleges to deny admission to a student who has been expelled from another district for sexual violence.
He said the ideas are an attempt to break “a very vicious cycle of sexual assault,” where victims do not feel comfortable coming forward to authorities, resulting in fewer convictions and a greater likelihood that perpetrators could rape again. Without resources to address the criminal justice system, he is focused on improving the adjudicatory process at colleges, where he believes the problem of sexual violence is greatest.
“For most survivors, their best chance at justice will be with the campus system,” Williams said.
That raises an alarm for many, including UC President Janet Napolitano, who warned last month in a Yale Law & Policy Review paper that “the federal government’s expectations, especially related to investigations and adjudication, seem better-suited to a law enforcement model rather than the complex, diversely populated community found on a modern American campus.”
Despite driving many of the policy changes at UC, Napolitano concluded that “rather than pushing institutions to become surrogates for the criminal justice system, more should be done to improve that system’s handling and prosecution of sexual assault cases.”
At the end of the day, you have an amateur trying to figure out if a rape has occurred.
Joe Cohn, legislative and policy director for the Foundation for Individual Rights
Cohn, of the Foundation for Individual Rights in Education, said schools are trying to do the right thing given what’s been asked of them, but in an effort not to make the campus process too legal, they’ve simply created an “unfair courtroom.” He believes that lawmakers should instead work to fix perceived flaws in criminal proceedings.
“All of the legislative fixes in California are operating under the premise that tweaks to the campus system will do the trick,” Cohn said.
He added that the policies further weight outcomes against defendants: California’s affirmative consent standard, for example, flips the burden onto the accused to prove innocence, and this year’s bills, which will make it harder for them to continue on to other institutions, are predicated on the notion that campuses can accurately determine their guilt.
“The Legislature’s responses are all in one direction: We need to help the victim,” he said.
Supporters defend the standards of the college disciplinary process, which they point out has different goals and far different punishments at stake than the criminal justice system.
Williams said victims need the help. The estimated number of students who are raped on campus every year, he said, far exceeds the number of students who are held accountable.
“I would still say the system is stacked against the survivor and for the perpetrator,” he said. “There’s a scale of difference that needs to be rebalanced.”