Reviewing State Legislative Agendas Regarding Sexual Assault in Higher Education

• Author: Tara N. Richards,Katherine Kafonek
• DOI: 10.1177/1557085115621163
• Published date: 01 January 2016
• Date: 01 January 2016
• Subject Matter: Articles

Feminist Criminology

2016, Vol. 11(1) 91 –129

© The Author(s) 2015

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DOI: 10.1177/1557085115621163

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Article

Reviewing State Legislative

Agendas Regarding Sexual

Assault in Higher Education:

Proliferation of Best Practices

and Points of Caution

Tara N. Richards1 and Katherine Kafonek1

Abstract

Given the seriousness of campus gender-based violence, and the limitations regarding

existing federal legislation, many states are considering new legislation to strengthen

their college and university’s policies regarding such violence. Using content analysis,

the present research examined the proposed legislation from the 2014-2015 legislative

cycle (N = 70) and identified themes regarding legislative aims. The range of merits

and potential challenges pertaining to the bills proposed by state legislatures as well

as those that were recently signed into law are then discussed. Recommendations for

the proliferation of some regulations and caution regarding the extension of other

legal mandates are provided.

Keywords

victim services, victimization, sexual assault, rape, qualitative research

Several decades of rigorous scholarship have demonstrated that sexual assault among

U.S. college students is pervasive. For example, a 2006 victimization survey by

Kilpatrick, Resnick, Ruggiero, Conoscenti, and McCauley (2007) generated a past-

year prevalence rate of 5.15% for rape among college women at one U.S. university,

compared with a rate of .94% for women in the general U.S. population. Other

victimization survey-based research regarding lifetime prevalence rates for sexual

assault has demonstrated that 20% to 25% of U.S. college women experience a sexual

1University of Baltimore, MD, USA

Corresponding Author:

Tara N. Richards, School of Criminal Justice, University of Baltimore, 1420 N. Charles St., LAP 519,

Baltimore, MD 21202, USA.

Email: trichards@ubalt.edu

621163FCXXXX10.1177/1557085115621163Feminist CriminologyRichards and Kafonek

research-article2015

92 Feminist Criminology 11(1)

assault prior to graduation (Fisher, Cullen, & Turner, 2000). Most recently, a 2015

survey of approximately 150,000 students across 27 U.S. universities demonstrated

that almost 24% of female students, 6% of male students, and 28% of transgender,

gender-queer, gender nonconforming, or gender-questioning students sampled

reported experiencing sexual assault since enrolling in college (Cantor et al., 2015).

Several pieces of existing federal legislation target campus sexual violence including

prevention and intervention efforts as well as disciplinary procedures. Most notably Title

IX of the Educational Amendments of 1972 (Title IX) prohibits sexual harassment—which

may exist on a continuum from, for example, harassing speech to an assault on one’s per-

son—as a form of sex discrimination (U.S. Department of Education, Office for Civil

Rights [OCR], 2001). In this vein, schools receiving federal funding, including institutions

of higher education (IHEs), have a duty to investigate and address allegations of student

sexual violence to ensure equal educational opportunities for students. The U.S. Department

of Education’s OCR has released multiple documents aimed at guiding IHEs in their com-

pliance with Title IX including sexual harassment guidance documents in 1997 and 2001

and a “Dear Colleague Letter” in 2011,1 which highlighted the prevalence of sexual vio-

lence on college campuses and reminded IHEs as to their obligations under Title IX (see

U.S. Department of Education, OCR, 1997, 2001, 2011). More recently, the OCR released

a lengthy document in April 2014 which guides readers through a list of answers to “fre-

quently asked questions” (FAQ) regarding expectations for IHE compliance with Title IX,

and in April 2015, the OCR published a Dear Colleague Letter to Title IX Coordinators

explaining IHE’s utilization of staff to facilitate the IHE’s efforts pertaining to Title IX (i.e.,

Title IX coordinators; U.S. Department of Education, OCR, 2015a) as well as a Title IX

Resource Guide that explains the scope of Title IX, the responsibilities of a Title IX

Coordinator, and the application of Title IX across various issues (e.g., sex-based harass-

ment, athletics, pregnant students; U.S. Department of Education, OCR, 2015c).

Taken together, this guidance indicates that upon an IHE’s knowledge of student

sexual violence, a trained IHE staff person, optimally the Title IX coordinator, promptly

investigates the allegation and, if a hostile environment is uncovered, takes steps to

ensure that the hostile environment is remedied and does not reoccur (U.S. Department

of Education, OCR, 2014a). In addition, Title IX mandates that a complainant be noti-

fied about his or her right to report the violence to law enforcement and informed about

any available campus and/or community resources (i.e., interim remedies) such as hous-

ing accommodations, victim advocate and/or legal assistance, academic support, and

physical and/or mental health services (U.S. Department of Education, OCR, 2014a).

In addition, the Student Right-to-Know and Campus Security Act of 1990, known

more generally as the “Clery Act” (Gregory & Janosik, 2013), requires IHEs to pro-

mote prevention and intervention strategies for crime victimization, to gather data on

crime (including forcible and nonforcible sex offenses) in the campus community, and to

make this data publicly available in an Annual Security Report (ASR) each year.

Congress amended Clery in 1992 to include the Campus Sexual Assault Victims’ Bill of

Rights, which requires schools to afford certain rights to sexual assault victims: schools

must inform individuals reporting rape of their options to notify law enforcement, grant

both the accuser and accused the same opportunity to have others present at any proceed-

ings, inform both parties of the outcome of any disciplinary proceeding, and notify the

Richards and Kafonek 93

individual reporting rape of available counseling services and options to change aca-

demic and living situations. Furthermore, the Violence Against Women Reauthorization

Act’s (VAWA) Campus Sexual Violence Elimination Act (SaVE Act; VAWA of 2013)

expands Clery’s reporting provisions beyond sexual violence to include information on

incidents of other types of gender-based violence, including domestic violence, dating

violence, and stalking; mandates that certain information be provided to victims includ-

ing that students have the choice to decline help from law enforcement; provides stan-

dards for student conduct disciplinary procedures; and requires that IHEs provide

primary prevention programs focused on gender-based violence.

While the aforementioned federal legislation provides the “minimum standards”

regarding IHE’s obligations concerning sexual assault in higher education, the White

House Task Force to Protect Students From Sexual Assault (2014a; hereafter White

House Task Force) has developed a series of best practices for responding to campus

sexual assault. These best practices are informed by the socioecological model of pre-

vention, which recognizes the dynamic relationship between individual-, relation-

ship-, community-, and societal-level factors that contribute to sexual assault (Dahlberg

& Krug, 2002). Regarding sexual assault among college students specifically, preven-

tion efforts based on the socioecological model highlight the interchange between

individual student’s risk for sexual assault victimization, and campus attitudes, norms,

and policies; student sexual assault awareness; faculty and staff training; and access to

victim services and resources.

To begin, the White House Task Force (2014b) encourages IHEs to maintain a

comprehensive sexual misconduct policy. At a minimum, comprehensive policies may

include “the definitions of various forms of sexual misconduct; the role of the Title IX

coordinator; and the proper immediate, interim and long-term measures a school

should take on behalf of survivors, whether or not they seek a full investigation”

(p.13). In addition, IHEs may use climate surveys to help identify the scope of sexual

violence on campus as well as students’ attitudes regarding sexual violence and their

knowledge of postassault reporting policies and victim services (White House Task

Force, 2014b). Campus climate surveys have been lauded as a powerful tool for gath-

ering data that can be used to develop campus-specific strategies for sexual assault

prevention and intervention (Cantalupo, 2014). Furthermore, public dissemination of

campus climate survey data promotes transparency regarding campus sexual assault

and may result in greater trust in the IHE and lead to increased reporting and service

use by student victims (Rankin, 2015).

Another key best practice includes the implementation of a comprehensive and

sustained campus sexual assault education program. Education programs should dis-

seminate information regarding the prevalence and context of sexual assault among

college students generally and the individual campus specifically, the policies regard-

ing sexual assault for the campus (e.g., reporting, investigation, disciplinary process),

and on- and off-campus resources (White House Task Force, 2014a). In addition to

providing information, effective strategies may include education to promote bystander

intervention (White House Task Force, 2014a, 2014b). As described by Katz and

Moore (2013), bystander intervention programs view participants “as potential allies

or helpers . . . and seek to promote prosocial attitudes and behaviors related to both