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Sexual Assault Cases in the Spotlight: How College Campuses are Facing the Problem Head-on

By of Aceto, Bonner & Cole, PC. posted in Criminal Law on Monday, August 15, 2016.

With the recent sentencing of Stanford student Brock Turner, the issue of college campus sexual assault has once again been brought to the forefront of national attention. Specifically, Judge Aaron Persky's minimal six-month sentence of incarceration for Turner highlights a systemic problem that colleges across the nation have been struggling to resolve: How can schools achieve justice for victims of sexual assault while simultaneously protecting the rights of students accused of these crimes?

Following the "Dear Colleague" letter distributed to school administrators by the Department of Education in 2011, schools have found it increasingly difficult to comply with the Department's mandate to adopt policies that will increase the probability of punishment for assaulters, while protecting accused students during the investigation process. At the center of this issue is the Department of Education's instruction for schools to follow the preponderance of evidence standard of review to determine the guilt of students accused of sexual assault. As a result of this lower threshold of evidence required to punish accused students, schools have faced backlash from male students who claim that gender-biased policies have led to unfair investigations and hearings. However, the National Sexual Violence Resource Center statistics report that one in 5 women and one in 16 men are sexually assaulted while in college, while more than 90% of those college victims will not report the assault. Additionally, the statistics show that, in the U.S., incidents of false reporting of sexual assaults is between 2% and 10%. These statistics show that the prevalence of false reporting is considerably lower than the rate of non-reporting, and that the shockingly low reporting of these assaults must be addressed.

By instituting a lower standard of review, the Department of Education hopes that the increased likelihood of perpetrators facing punishment will instill confidence in victims to step forward and report the crimes committed against them. Despite this well-intentioned policy, the minimal threshold standard increases the risk of punishing guiltless students whose innocence is not immediately apparent based on the initial facts. In fact, an increasing number of lawsuits by male students have been filed as a result of punishments that were served after the school reviewed the claims against them. The plaintiffs in these cases, however, have been hard pressed to create a link between gender bias and the school's review process.

Although a policy facilitating increased report rates is vital to quell campus sexual assaults, it is merely one piece of a much larger puzzle. In order to truly confront sexual assault, prevention must also be the focus of higher education institutions. Many schools have realized the importance of this, and have adopted programs to educate students throughout their college career. For instance, Dartmouth College has made it mandatory for students to be educated on preventing sexual assault all four years. Furthermore, the University of Massachusetts, Amherst has launched the initiative, UMatter at UMass, focusing on educating students on how they can become active bystanders to intervene when they see a potential sexual assault situation. Similarly, a 2014 study by the University of Kentucky showed that Kentucky high schools who utilized the Green Dot, a bystander education program, saw a 50 percent decrease in sexual misconduct incidents over 5 years, showing that these initiatives have the potential for great success.

Coupling the implementation of the preponderance of evidence standard of review with expansive education initiatives may provide an impetus to reduce campus sexual assaults. Brock Turner's controversial sentencing, however, illustrates that there is still much work to be done to alter the public's view sexual assault.