Unreported Sexual Assault

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 607. Unreported Sexual Assault

Unreported Sexual Assault

Saul Levmore & Martha C. Nussbaum (fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 607

II. Rewarding Potential Accusers: A Proposed Means of Reducing Sexual Assaults on Campus ................. 612

III. Implementing a Reward System ....................... 614

IV. Dealing with Objections to the Plan ................... 620

V. False Claims and Protection for the Accused ........... 623

VI. Conclusion ............................................ 627

I. INTRODUCTION

Unreported criminal behavior is troubling for a variety of reasons, including the likelihood that it reduces the law's ability to deter wrongdoing. This is especially unfortunate in the case of sexual assault and other wrongs where the wrongdoers are often repeat offenders who will harm others until apprehended.(fn1) In many cases, these

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assaults take place over many years so it is especially easy to see why early reporting could prevent many subsequent harms.(fn2) One approach to the problem of wrongdoers who are difficult to apprehend, and thus

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apparently undeterred by tort and criminal law, is to alter the law's approach, perhaps by focusing less on deterrence and more on education, or on separating populations from which offenders and victims are likely to be drawn.(fn3) Another is to double down on deterrence by raising the penalty for those who are caught and convicted.(fn4) The deterrence approach is difficult and often counterproductive where there is some doubt about culpability or where the factfinder and adjudicator have limited power, as in the case of wrongs committed on university campuses and in many workplaces. Our focus here is on sexual misdeeds on college campuses, but much of the analysis is easily applied to plagiarism and to various wrongs committed in the workplace. Some of the ideas offered here can be applied to crimes more generally, but it is useful to begin with wrongs that are judged by something less than a beyond-a-reasonable-doubt standard. In the case of sexual assault on campuses, for instance, consent and other defenses may be contestable, and fact-finding as well as remedies are in the hands of private parties and often subject to a more-likely-than-not standard.(fn5) Indeed, the terms that are used distinguish the matter from criminal law; the accused may be "held responsible" rather than "convicted," though the matter can also be investigated in the criminal law system. In the workplace, an employer's suspicion about sexual misbehavior or embezzlement may be judged by a standard that is even lower; reporting is surely valuable to these employers as well as to fellow workers. An employer who thinks someone may have embezzled is unlikely to promote that person and is disinclined to bring in the police. In all these settings, the traditional tort system is also inadequate or inappropriate; the evidence may be insufficient to meet its standard, it is slow and expensive, and it often demoralizes other employees or students.

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The danger of upsetting the lives of victims and accused persons may of course be offset by the gains that are available only from encouraging victims to report assaults and other injuries, not to mention identifying the wrongdoers who caused them. When the tort system comes into play, it often does so because victims are motivated to bring suit by the monetary damages they can expect. This is less so for victims of sexual misconduct because they are unlikely to be able to show the sort of losses that the law compensates; emotional loss standing alone is traditionally uncompensated.(fn6) The exceptions to this observation are noteworthy but do not detract from the proposal offered here. Many of the exceptional cases involve celebrities who have reason to offer substantial monetary settlements or who are pursued in court to the bitter end. For example, one of Bill Cosby's accusers received a sizable settlement.(fn7) At times, even universities pay out. The accuser of football star Jameis Winston received close to one million dollars from Florida State University.(fn8) Cases with such payouts appear to be exceptional, but they can be used to taint the complaints of women who accuse celebrities of wrongdoing. Indeed, in Cosby's second trial, the defense sought (unsuccessfully) to portray the accuser as a greedy extortionist.(fn9) In any event, when a case is settled, the settlement is likely to include a nondisclosure provision, and the obliviousness of the authorities eliminates a chance to take steps that will prevent future harms.(fn10) In almost all these cases, whether in the criminal law process, in university settings, or in the workplace, victims have little to gain and much to lose when they set an inquiry in motion. One who reports a wrong committed within a community risks ostracism and retaliation and surely faces months of distraction and pain, beginning with expressions of disbelief by some of those who learn of the accusation. This is especially so in a university community and where sexual misconduct is concerned. What ought to be regarded as heroism is

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often treated as contemptible behavior, as if the victim is nothing more than a snitch who has violated the informal rules of partying, social drinking, collegiality, or dating. In the workplace, a victim who reports an assault or other wrongdoing often escapes unwanted attention by moving to another place of employment and, in any event, is unlikely to be rewarded by her employer and co-workers. In this Article we suggest, or at least explore, a means of encouraging reports. The primary goal is to prevent wrongdoing in the first place.

Alongside the aim of preventing wrongs lie other goals. The first is to offer justice to both victim and accuser. The victim of sexual misconduct will normally want to see the perpetrator identified and held accountable, and she may simply wish to be heard. Accountability will also serve to deter future offenders, to express evolving social norms, and to educate society (or students and employees when the case is on a university campus) about these norms. The victim is entitled not simply to be heard but also to be respected and believed when the claim is credible and there is no contrary evidence or credible defense. Unless there is good reason for an exception, the victim is also entitled to privacy; there is rarely a need to inquire about past sexual behavior or to make public the current claim. Privacy is not only fair to the victim (unless she wishes to go public), but it also makes future reports by other victims more likely, and thus serves to deter wrongdoing. Any proposal for reform in this area needs to account for the values of privacy and dignity, and more generally to ask whether a proposed change will encourage or discourage reports of wrongdoing.

It must be emphasized that one victim's courageous complaint helps multiple future and potential victims. It may do so because the accused is a serial perpetrator or because it encourages other women to report and to seek justice. Even as we respect the inclination of some women to get on with their lives and to avoid entanglement with factfinders and hearings, we must think of the benefits of their coming forward. It is here that our proposal makes a novel contribution.

At the same time, society has its familiar interest in preventing innocent people from being damaged. A large and well-known debate has arisen about the correct standard of proof in university tribunals conducted under Title IX.(fn11) A beyond-a-reasonable-doubt standard is one familiar means of protecting the accused, but a preponderance-of-the-evidence standard has been pushed into use in university cases in the interest of safety, and in part because the accused may be threatened with expulsion from a university but not with prison or

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anything of that kind. We do not comment on this debate here. It is not clear what the standard is in cases such as plagiarism or accusations of unwarranted damage to university property, though it is arguable that each university should simply choose the standard it finds appropriate.(fn12)

II. REWARDING POTENTIAL ACCUSERS: A PROPOSED MEANS OF REDUCING SEXUAL ASSAULTS ON CAMPUS

This Article's focus is on first-party reporting, but much of the analysis can be applied to second and third-party reporting. The first party is the person who suffers directly from an assault or other wrongful behavior. In some cases, the first party is unable to make a credible report because she (and here, for the sake of clarity, we continue to choose language that depicts the most common case, which is that of a woman assaulted by a man, although there are of course other configurations) has been disabled or threatened with further harm-or may be under the influence of drugs (whether voluntarily or involuntarily consumed) or alcohol and unable to recollect events precisely. But the first party may also prefer to put the event behind her; she may fear disapproval or may be pained by repeated recollection or questioning. For this and many other reasons,(fn13) it is important to value reporting by a second party-a term that describes someone

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who witnesses the event in question.(fn14) Finally, reporting by a third party may occur; this may be someone who heard from the victim in...