A complex patchwork of federal laws, regulations, and both binding and non-binding “guidance” issued by federal agencies governs how colleges respond to allegations of sexual harassment or sexual assault on campus. Compliance with these laws is often a challenge for colleges, which have to respond to the federal government’s increasingly specific demands regarding the contents of their policies and conduct of adjudications in this area. From my perspective as a lawyer whose most frequent involvement in such campus proceedings is as an advocate for accused students and faculty, it often seems that the laws that govern in this area are becoming increasingly complex and yet no better able to deal effectively or appropriately with the complexity of real human relationships and interactions. I firmly share the goal of reducing sexual assault on college campuses and elsewhere, but believe that legislation should be carefully evaluated with an eye to its likely real-life consequences for students, whether complainants or respondents.
That is why, as states begin to legislate more frequently in this area, California Governor Jerry Brown’s veto of one proposed law was a refreshingly common sense choice. The bill would have required colleges to dole out at least a two year suspension to any student found responsible for a sexual assault of any kind. That requirement quickly prompts the question of how “sexual assault” is defined, and there the legislation provided little help, stating: “For purposes of this section, ‘sexual assault’ includes, but is not limited to, rape, forced sodomy, forced oral copulation, rape by a foreign object, sexual battery, or a threat of sexual assault involving a student, whether on or off campus.” That definition is incredibly poorly drafted; it is common sense that sexual assault would include the listed crimes, but by stating that it is “not limited to” those crimes, legislators left open the possibility that the definition could be wide enough to sweep up extensive conduct that most people would not consider so severe as to warrant a two year suspension from college, with its attendant loss of financial aid and removal from school housing.
The concern that the law could have cut more broadly than intended is neither idle nor unrealistic. A recent widely-publicized survey by the Association of American Universities (AAU) was reported as finding startlingly high rates of sexual assault on campus, but what it measured was a much broader set of behaviors than those that most people would consider “sexual assault.” (Even these measurements may not have been particularly accurate due to the survey’s limitations and selection bias among respondents, as this article notes.) In measuring “nonconsensual sexual penetration and sexual touching,” the survey included actions ranging from obviously serious criminal conduct to any touching deemed “sexual” that occurred as a result of “coercive threats of non-physical harm or promised rewards,” or as a result of “failure to obtain affirmative consent.” A student who grabs and kisses another without affirmative consent, has just committed a sexual assault by this measure—regardless of attendant circumstances, so long as those circumstances don’t include clearly communicated consent to the kiss. Even if we accept that framing, it’s hard not to feel that the student in that case should receive a lighter penalty than a student who intentionally rapes another. It’s also hard to believe that the student’s penalty should be a mandatory 2-year suspension. But the case could have been considered covered under the California law—or administrators could have considered it unclear whether it was covered or not, and chosen to err on the side of caution.
One of the most striking statistics in the AAU survey results was the very high percentage of students who reported on the survey that they had experienced an incident of nonconsensual penetration or touching but did not report it because they did not believe the incident was serious enough to merit reporting. Even for penetration involving physical force, 58.6% gave this reason for not reporting; for less serious incidents, the percentage was much higher. Ongoing relationships among students also mean that even victims who do believe that what happened was a serious matter may not want a mandatory penalty; advocates who generally support harsh presumptive penalties still say that they should not be automatic because they may actually deter victims from reporting. The statistics point to a serious need for greater understanding, both by colleges and legislatures, of the reality of how sexual interactions are playing out on campuses before beginning to mandate severe penalties for broad categories of actions. Given the potential for very negative unintended consequences of the law, Governor Brown acted wisely in exercising his veto power; other states and individual universities faced with calls to enact mandatory penalties in this context should follow his example.