Campus sexual assault adjudication and resistance to reform.

• Author: Anderson, Michelle J.
• Position: Introduction through II. Response to Rape Law Reform, p. 1940-1969 - A Conversation on Title IX

FEATURE CONTENTS INTRODUCTION I. RAPE LAW REFORM A. Traditional Rape Law B. Progressive Rape Law Reform C. Conservative Rape Law Reform II. RESPONSE TO RAPE LAW REFORM A. Continued Failure To Treat Rape Equitably B. Backlash Against Progressive Rape Law Reform C. Embrace of Conservative Rape Law Reform III. CAMPUS SEXUAL ASSAULT REFORM A. OCR Requires Equitable Resolution of Campus Sexual Assault B. States Adopt Affirmative Consent Rules for Campuses IV. RESISTANCE TO CAMPUS SEXUAL ASSAULT REFORM A. Argument that Campus Sexual Assault Adjudication Requires Unique Procedural Hurdles B. Argument that Campus Sexual Assault Adjudication Violates Due Process C. Argument that Campus Sexual Assault Adjudication Harms Impressionable Young Women D. Argument that Campus Sexual Assault Adjudication Harms Young Men with Bright Futures E. Argument that Disciplinary Proceedings Are the Wrong Forum and Affirmative Consent Is the Wrong Standard for Campus Sexual Assault V. SOME LESSONS LEARNED FROM THE HISTORY OF RAPE LAW REFORM A. We Should Support Campus Adjudication of Sexual Assault B. We Should Oppose Unique Procedural Protections for Those Accused of Campus Sexual Assault Because They Are Rape Law's Unique Procedural Hurdles in Sheep's Clothing C. We Should Oppose Administrative Mandatory Minimums and Other Efforts To Increase Direct or Collateral Penalties in the Context of Campus Sexual Assault D. We Should Follow Campus Adjudication of Sexual Assault To Learn Its Lessons for the Criminal Law E. We Should Attend to Sexual Assault Victims Who Do Not Attend College CONCLUSION INTRODUCTION

To understand the current resistance to the application of Title IX to campus sexual assault, one must understand the history of rape law reform and the ensuing backlash. That history clarifies why campus adjudication of sexual assault is a positive development, and why unique procedural protections for those accused of sexual assault in campus disciplinary proceedings and mandatory penalties for those found responsible for sexual assault are both ill-advised.

Over the past forty years, rape law has undergone substantial, positive change. Feminist reformers succeeded in making the crime gender-neutral (1) and in abolishing a number of unique procedural requirements that unfairly burdened rape prosecutions. (2) These discredited rules included requirements that the complainant's credible testimony be corroborated by other evidence, that the victim resist her attacker to the utmost of her physical capacity, that the victim promptly complain to authorities of the attack, that the victim not be married to the attacker, and that the judge caution jurors to weigh the testimony of complainants in rape cases with skepticism. (3) Today, the reform movement is focused on clarifying the contours of consent and abolishing the legal requirement of force. (4)

The reform movement is also taking aim at campus sexual assault. Title IX is the federal law that prohibits gender discrimination in education. (5) The feminist movement facilitated the interpretation of Title IX as mandating that colleges and universities respond equitably to campus sexual assault. Key controversies today about the application of Title IX to campus sexual assault each have analogs in rape law reform discourse over the past few decades. Some legal scholars have expressed opposition to colleges and universities regulating campus sex, asserting that the U.S. Department of Education's Office for Civil Rights (OCR) has gone too far in enforcing Title IX. (6) Questions have emerged about which system is better equipped to handle allegations of campus sexual assault: the college disciplinary system, or the criminal justice system. (7) Some have criticized the climate that they believe the concern for campus sexual assault itself stimulates. They decry what they see as a neo-Victorianism on colleges nationwide, a moral panic that undergirds concern about transgressive sexual behavior. (8)

Dozens of law professors from Harvard and the University of Pennsylvania recently denounced the codes and procedures their institutions have adopted to address campus sexual assault. (9) These open letters bespeak the charged nature of debates around campus sexual assault, as well as broader institutional anxiety about discovering sex offenders in college.

This Feature describes some of the major developments in rape law over the past forty years and compares them to recent developments in Title IX's application to campus sexual assault. In the context of both the criminal law prohibiting rape and campus codes prohibiting sexual assault, this Feature discusses progressive and conservative (10) reform of procedural and substantive rules, as well as backlashes against these reforms. The central claim is that the application of Title IX to campus sexual assault, and the resistance to that application, parallel the history of rape law reform. From this parallel, this Feature draws insights about how we should view recent developments in how campuses address sexual assault.

Part I describes traditional rape law and the movement for reform, noting two distinct strands. First, a progressive strand of reform eliminated unique procedural hurdles facing prosecution and expanded the definition of the crime to become more consonant with victims' experiences. Second, a conservative, punitive strand of reform ushered in increased criminal punishments and serious collateral consequences to convictions for sex offenses. Part II begins with the continued failure to treat rape equitably despite decades of progressive rape law reform. It then describes a vocal backlash against the progressive strand of reform, and contrasts that with the relative quiet in response to the conservative, punitive strand of reform. Part III turns to the issue of campus sexual assault. It outlines the application of Title IX to campus sexual assault as OCR has interpreted it. It then describes the adoption of affirmative consent rules by colleges and universities. Part IV outlines the key arguments against campus sexual assault adjudication and affirmative consent rules, including challenges based on due process, the merits of substantive standards, and the institutional capacity of colleges and universities to address sexual assault. It traces the similarities of these arguments to those levied against progressive rape law reform. It also notes the alleged harm that campus adjudication portends for impressionable young women as well as young men with otherwise bright futures. Part V explores how the history of rape law reform sheds light on campus sexual assault reform. It concludes that we should support campus adjudication for sexual assault, and oppose both unique procedural protections for those accused of sexual assault and mandated penalties for those found responsible for the misconduct.

1. RAPE LAW REFORM

   To understand institutional reform in response to campus sexual assault, one must begin with traditional rape law, trace progressive reform over the past forty years substantively and procedurally, and then trace the conservative reform of rape punishment over roughly the same period of time.

   1. Traditional Rape Law

      Traditional rape law defined the crime as "the carnal knowledge of a female, forcibly and against her will." (11) Under this definition, rape required vaginal penetration by a penis ("carnal knowledge of a female"), plus force used by a male attacker ("forcibly"), plus the nonconsent of the female victim ("against her will"). (12) The force element was narrow and specific--a form of physical force that coerced the victim's compliance. (13) A victim was expected to resist a sexual attack physically so that the attacker would have to use force, and so that the ensuing struggle would create corroborative evidence of the attack. (14) The nonconsent element was also hard to meet because so much behavior could imply consent. Silence or passive acquiescence to sexual penetration was sufficient to imply consent. (15) Moreover, a victim's lack of chastity or behavior that violated traditional gender-based norms was also sufficient to imply consent. (16)

      Independent of the substantive definition, traditional rape law also included at least three unique procedural hurdles that prosecutors had to jump to secure a conviction. First, although victims of other felonies need not promptly complain, a prompt complaint rule in rape law meant that if the victim did not immediately report to authorities, she could not pursue criminal redress. (17) Henry de Bracton, an influential thirteenth-century English legal scholar, described it as a "hue and cry" requirement to prove rape. (18) The Model Penal Code in the United States turned the rule into the short statute of limitations for sexual offenses of three months. (19)

      Second, although perpetrators of almost all other crimes could be convicted...