Colleges and universities: a place to get away with rape.

• Author: Clay, Evelin Mac

1. INTRODUCTION

   Tyler Thomas ("Tyler") was a nineteen-year-old first-year college student who lived on campus at Peru State College (1) ("PSC"). (2) Tyler was last seen on December 3, 2010, and although her body has never been recovered, she was declared dead by a Nebraska court. (3) Tyler's mother filed a complaint against the school where she alleged Tyler was abducted, sexually assaulted, and murdered by Joshua Keadle (4) ("Joshua"). (5) Joshua's statements to the police varied, (6) and although he denied hurting Tyler, his statements indicate he was alone with Tyler near the Missouri River, on the morning of December 3, 2010. (7) It seems Joshua was the only person who had knowledge about Tyler's whereabouts, but Joshua pled the Fifth Amendment (8) and also refused to be deposed by Tyler's mother. (9)

   Joshua, who was 29 years old at the time of Tyler's disappearance, was living on campus in the same dormitory as eighteen- to nineteen-year-old students, such as Tyler, who was his next-door neighbor. (10) In August 2010, Joshua applied to volunteer and assist with the PSC women's basketball team, which triggered a background check that revealed only minor traffic offenses in Nebraska. (11) At the same time, campus security suspected Joshua had stolen a laptop, which led to the Sheriff's department investigation. (12) In September 2010, Joshua was charged with two separate violations of PSC's Code of Conduct based upon alleged inappropriate sexual behavior toward two female students at PSC. (13) He admitted to the first charge of sexual harassment and was ordered to complete an online educational program and ten hours of community service; he failed to complete either sanction. (14)

   On September 23, 2010, while sexual harassment charges were being investigated, William Stonebarger ("Mr. Stonebarger"), the Director of Housing and Security, recommended to Michaela Willis ("Ms. Willis"), Vice President for Enrollment Management and Student Affairs, that Joshua be removed from the dormitories if he admitted responsibility, (15) but Ms. Willis disagreed. (16) Local police and PSC's Title IX Coordinator were not informed of the sexual harassment allegations, and we will never know whether Tyler's life could have been saved if local authorities were involved when the harassment accusations against Joshua were made. (17)

   Tyler's case is not an isolated occurrence. (18) Studies show that about twenty percent of young undergraduate women (19) and six percent of young undergraduate men (20) who go to college and reside on campus, will suffer from attempted or actual sexual abuse. (21) Yet, sexual abuse is one of the most underreported crimes in the United States. (22) The consequences faced by victims of sexual abuse are overwhelming, which include increased rates of depression, (21) stress disorder, (24) alcohol or drug consumption, (25) and suicide attempts. (26) We all need to do something. (27)

   Just as physicians, health professionals, and school officials are required to report suspicions of child abuse in Florida, (28) colleges and universities (collectively referred to as "schools"), should bear the same duty of mandatory reporting for cases of sexual abuse. (29) If a university has determined, by the preponderance of the evidence, (30) that sexual abuse has occurred, then the university should be compelled to report the incident to local police. (31) Although Florida is known for having passed the toughest mandatory reporting laws for sexual abuse of children after the Sandusky Penn State scandal, (32) there is no mandatory reporting requirement for young adults who suffer sexual abuse in schools." Additionally, schools do not currently offer programs of rehabilitation for the alleged assailant, and for the most part, the alleged attacker is allowed to continue pursuing his or her studies in the same university, running the risk of having repeat offenders on campus. (34)

   Part II of this comment will provide a background of the different laws and amendments previously enacted in an effort to eradicate sexual abuse from colleges and universities, such as (1) Title IX of the Education Amendments of 1972; (35) (2) Dear Colleague Letter; (36) (3) The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act"); (37) (4) Campus Sexual Violence Elimination Act of 2013; (38) and (5) the proposed bill "Safe Campus Act of 2015," (39) which was introduced to the House of Representatives on July 29, 2015, but has not been enacted. (40) Part III will discuss the problem of underreporting of sexual crimes, the disservice caused by universities investigating and handling sexual crimes internally, and the lack of punishment toward the assailant. (41) Part IV proposes that (1) colleges and universities be obligated to report allegations of sexual assault to local authorities; (2) the victim's identity remain protected by the authorities, allowing the victim to proceed by pseudonym or anonymously, if the victim so choses; (3) colleges and universities implement a rehab program in which the alleged assailant or any student who has a record of sexual misconduct must undergo a psychological evaluation and attend weekly counseling sessions; and (4) the assailant be automatically suspended upon being found responsible by the university's committee, (42) until completion of the rehab program, followed by a one-semester probation in which the assailant has to continue attending monthly sessions; however, if the student violates probation, such student should be automatically expelled on the basis of sexual misconduct, which should be noted on his or her school transcripts. (43)

2. BACKGROUND

   1. TITLE IX, CLERY ACT, AND DEAR COLLEAGUE LETTER

      Title IX of the Education Amendments of 1972 (44) prohibits discrimination based on sex in any federally funded education program. (45) Additionally, Title IX provides that colleges and universities shall provide the victim of sexual abuse with a safe environment that does not interfere with the victim's right of pursuing an education. (46) A combination of one semester suspension for the offender, which is the most common reprimand according to the Department of Justice's ("DOJ") data on how sexual assaults are punished, (47) and a change of schedule for either the assailant or the victim may not be enough to provide a safe environment for the victim, when studies show that nine out of ten rapes are committed by repeat offenders. (48)

      The Clery Act, (49) which was enacted in 1990, requires colleges and universities to gather, collect, and report to all current and prospective students, every September 1st, a statistical report about crimes that occurred on or near the campus. (50) Schools must disclose statistics regarding the following criminal offenses reported to campus security authorities or local police agencies: (1) murder (51); (2) sex offenses, forcible or nonforcible (52); (3) robbery (53); (4) aggravated assault (54); (5) burglary (55); (6) motor vehicle theft (56); (7) manslaughter (57); (8) arson (58); and (9) "arrests of persons referred for campus disciplinary action for liquor law violations, drug-related violations, and weapons possession." (59)

      A little more than twenty years later, in April 2011, the United States Department of Education ("DOE") released the Dear Colleague Letter ("DCL"). (60) DCL provides guidance for schools to comply with Title IX. (61) Also, this letter was used to explain that a number of different acts, such as rape, (62) sexual assault, (63) sexual battery, (64) and sexual coercion, (65) which fall into the category of sexual violence, are all forms of sexual harassment covered under Title IX. (66)

   2. CAMPUS SEXUAL VIOLENCE ELIMINATION ACT OF 2013

      Two years later, the Campus Sexual Violence Elimination Act of 2013 amended the Clery Act, (67) and President Barack Obama signed it into law on March 7, 2013. (68) The purpose of this Act is to increase transparency regarding the incidents of sexual violence on campus, to inform and enhance rights (69) for the victims, to provide guidance to universities regarding investigations, and to enact campus wide educational programs. (70)

      The DOE's Clery Act Compliance Division has the power to investigate alleged violations of the Act and issue findings to enforce its provisions. (71) Any institution found to violate the provisions of the Act can be fined a maximum of $35,000 per violation. (72) However, it seems that schools have been successful in paying lower lines than the ones originally imposed by the DOE. (73)

   3. SAFE CAMPUS ACT OF 2015

      The U.S. Congress, in an effort to eradicate sexual abuse on campus, introduced to the U.S. House of Representatives a bill--H.R. 3403-Safe Campus Act of 2015--which requires institutions of higher education to report allegations of sexual assault to law enforcement. (74) However, this bill has a disadvantage for victims who do not want to report their assailant because if the victim does not report, the school is not allowed to take security measures to assist the victim, such as changes to class schedule, suspensions, no contact orders, or changes in housing allocations, even upon victim's request. (75) Additionally, the bill states that schools are permitted to impose interim sanctions during the law enforcement investigation period. (76) The bill also states that schools are allowed to use the standard of proof that is deemed appropriate by the school for the purpose of adjudicating and imposing internal sanctions on the alleged assailant. (77)

3. PROBLEM

   1. UNDERREPORTING

      Approximately ninety-five percent of campus rapes are not reported. (78) The main reasons that victims do not come forward are (1) the desire to keep the incident as a private matter because of shame or embarrassment; (79) (2) lack of understanding of what constitutes sexual assault or rape, (80) (3) lack of trust in the criminal system; (81) (4) fear of losing...