Approximately 20% of women in college are sexually assaulted during their time at school.1 This longstanding epidemic of campus sexual assault has finally reached a flashpoint, igniting a national dialogue. Having taught courses on Title IX’s application to campus sexual assault over the past seven years and having done extensive case work in the field, I propose that the most effective way to stop campus sexual assault is to confront the reality of its perpetration, identify the cultural components that enable its normalization, and build the institutional capacity of schools to prevent and address it. This Commentary contributes to this crucial discourse by dispelling unrealistic ideas of how campus rape is perpetrated and of its attendant effects on the educational opportunities of so many survivors, and by detailing how schools must respond to this ongoing crisis.2
This Commentary first describes schools’ responsibilities under Title IX3 to address the pervasive problem of campus sexual assault. Second, it offers an overview of representative cases that provide a sense of the problem from the perspective of the survivors with whom I have worked. Third, it proposes a theory of “target rape” to capture the reality of the vast majority of campus rapes, and to distinguish these cases from genuine misunderstandings about consent.4 Finally, it suggests that schools use campus climate surveys that measure specifically the level of male dominance on campus. Based on that information, the school will be in the optimal position to create the most effective interventions on prevention, response, and resolution of sexual misconduct cases.
I. Title IX and Sex Discrimination in Education
Recent activities at Princeton University illustrate many aspects of the problem of sex discrimination on campus. In November 2014, officers of the Tiger Inn eating club were forced to resign after they circulated two troubling emails among club members. One asked, “Ever wonder who we have to thank (blame) for gender equality[?] . . . Looking for someone to blame for the influx of girls? Come tomorrow and help boo Sally Frank.”5 Frank, then at Princeton to give a speech,6 had successfully sued the eating clubs at Princeton over their exclusion of women.7 The other email included a photograph of a freshman “Asian chick” performing a sex act on a senior male in a public space of the club.8 The following month, the words “Rape Haven” were spraypainted on the fence in front of the club’s building.9
The same month, the Office for Civil Rights (OCR) of the U.S. Department of Education had reached a resolution agreement with Princeton after determining that the university had violated Title IX in its handling of three separate sexual assault cases. The University had, among other things, failed to provide a “prompt and equitable response” to sexual harassment and assault, applied an inappropriate “clear and persuasive” evidence standard in its investigation, and failed to correct the hostile environment thereby created.10
Title IX is a civil rights statute that was enacted to prevent sex discrimination at school, particularly in relation to the admission of women to colleges whose doors had previously been closed to them.11 Even once admitted, moreover, women are entitled to equal access to educational opportunities. Sexual harassment that creates a hostile environment interferes with that right to educational access, and thus schools are obligated to prevent and address it.12 Viewed within the appropriate civil rights framework of Title IX, the obligation of schools to prevent and address campus sexual assault is more easily understood.
The three main responsibilities of a school are best described as prevention, response, and resolution of matters involving sexual misconduct. I view this obligation as a three-legged stool, meaning that if one leg is missing, the stool (here, the sexual misconduct policy) will not stand. For example, if a school has good preventive education programs, and support services for survivors, but fails to impose consequences on students responsible for sexual misconduct, the overall policy will fail. Students know how seriously their schools take sexual assault and they conform their behavior accordingly. Proper resolution of cases thus feeds into preventive education. Additionally, students know how well their schools respond to allegations of sexual assault, and this knowledge will affect their willingness to report either witnessing or experiencing such behavior. Students are particularly attuned to threats of retaliation by peers, and need to know that the school is obligated to protect them. Thus, one can see how this tripartite obligation gives rise to an informational feedback loop among students. Schools should focus their programmatic response accordingly.
The first component of preventive education is that students must be informed of their rights under Title IX. Students who do not know their rights cannot assert them. Alexandra Brodsky and Dana Bolger, the cofounders of Know Your IX, a student campaign seeking to increase Title IX awareness, assert that their entire college experiences would have been different if they had known their rights to be free from a hostile environment in the wake of their assaults.13 With any civil rights struggle, informing people of their rights and giving them information on how to actualize them is crucial.
Preventive education also involves teaching students what I call the “rules of the road.” These rules are different at various schools, but all schools must teach students about standards of conduct and how they will be enforced. The more that student input is reflected in an educational prevention program, the more likely it will be successful.
This positive feedback loop can only take effect if a school has laid out a clear standard for sexual misconduct that it is prepared to communicate and enforce. What should the standard be? Debate on this issue is intense. Governing legal standards attempt to establish an objective, rather than subjective, inquiry into whether a woman wanted sex — in fact, rape law, by requiring a woman to demonstrate utmost resistance, to report immediately, and so on, treats women as always wanting sex unless otherwise clearly and unmistakably indicated. My own view is that the most sensible approach is the “affirmative consent” principle that is being adopted by a growing set of schools.14 Notably, California recently amended its Education Code to require that all postsecondary institutions receiving state funds implement an affirmative consent standard,15 explicitly stating that “[l]ack of protest or resistance does not mean consent, nor does silence mean consent.”16 The law, as with many other affirmative consent policies, recognizes that a person who is “incapacitated due to the influence of drugs, alcohol, or medication” cannot give consent.17 Affirmative consent standards signify progress insofar as they counter the sexist presumptions currently applied. Better still would be a standard of wanted sex in the context of a world in which the threat of male sexual violence does not constrain women’s sexual choices.18
Nonetheless, affirmative consent standards are a positive step in that direction. Listening and being responsive to students speaking out on the issue is of utmost importance for any school. Students overwhelmingly support affirmative consent standards, and are activating across the country to have these standards adopted at their schools.19
The particular consent standard that a school selects is at least as important as the implementation of an effective campaign to educate students about it. The education campaign should include a clear explanation of the sexual misconduct policy and a discussion about what does and does not constitute consensual sexual activity, how to report a violation of the policy and obtain support, and what the consequences will be if the policy is violated.
Second, in regard to a school’s response to a report of sexual misconduct, the most critical point is that schools must prevent a “second rape” through an informed response that does not cause additional trauma to the affected student.20 Schools can play the crucial role in setting the trajectory for a student’s possible recovery through a coordinated and intelligent response. On the other hand, they can — and often do — exacerbate a victim’s trauma by making her fend for herself, not investigating properly, saying victim-blaming things or asking victim-blaming questions, or just overall not taking the assault seriously.
Third, in resolving a claim of campus sexual assault, schools are obligated to investigate and remediate a hostile environment in a “prompt and equitable” manner.21 Investigations should be initiated promptly and competently, meaning by a trained factfinder who understands how to gather evidence by interviewing witnesses, examining social media, and following up on incriminating statements.
As part of a civil statute, Title IX’s substantive standard of proof for violations is whether a preponderance of the evidence indicates a discriminatory act occurred.22 As Baine Kerr, a nationally prominent Title IX attorney, states:
[A preponderance of the evidence standard] is the only standard that complies with Title IX because it does not favor one student over another and asks only, in the context of a rape allegation, which student’s account is more likely. In weighing which account is more likely, customary evidentiary principles apply, including credibility, bias, consistency and inconsistency, adverse inferences from refusals to answer questions, corroboration by physical evidence and other witnesses, post-incident behavior and demeanor, and whether the student had a motive not to tell the truth.23
Of course, while rape is an act of sex discrimination that violates one’s rights on campus, it is also a criminal act. But even though there is overlap between the responsibilities of schools and those of law enforcement, it is crucial to remember that the civil rights/criminal justice system distinction creates a different legal standard for school adjudications as compared to criminal cases.24
For a long time, schools — and the federal government — did little to effectively address the systemic problem of sexual assault, instead denying in various ways that rape happened on their campuses. But the Obama Administration has recently made an unprecedented effort to address campus rape, and over 100 schools were under investigation as of April 2015.25 An uptick in enforcement activity by the OCR has created pressure on schools to comply with new laws and guidance or risk the loss of federal funding.26 Accordingly, this increased enforcement activity has caused serious and improved discourse at schools, as they undertake to synthesize new federal guidance into their own policies and procedures.
The cases underlying the investigations are most often complaints by students who were sexually assaulted by other students and then left to fend for themselves in the face of retaliation by other students for reporting the assault, falling grades, intense depression, and the school’s failure to provide a “prompt and equitable” response to their case.
Critics fear that, under a preponderance of the evidence standard, students accused of sexual assault can be easily expelled from school.27 Critics of the OCR standard assert that (a) the relevant evidence will be murky because the key question in determining responsibility will likely be the presence or absence of consent or coercion; (b) school adjudicators will favor the victim to avoid possible consequences from OCR; and (c) false conclusions that the accused did indeed commit sexual assault under the standard will result in terrible injuries to him.
Critics are correct that we must not take lightly the significance of the potential harms to a student found responsible for sexual misconduct — harms that may include having to transfer to another school; having the finding on his transcript and having to explain it for the rest of his life; having problems gaining employment; and experiencing reputational harm.
However, we must weigh these potentialities against the harms to the student reporting that she had been raped — and the consequent costs of systematic underenforcement. First is the experience of the violation itself, and the attendant feelings of loss of control. As one survivor put it: “there’s a person before you get raped, and there’s a person after you get raped, and that person after you get raped is always longing to be that person before.”28 There is the trauma of getting a rape kit done and having to describe what happened to complete strangers in a hospital setting. Following an unwanted sexual experience, students most often experience inability to work or to complete assignments, inability to eat, loss of interest in intimacy and sex, and falling grades.29 Most victims attempt to avoid the perpetrators,30 but the campus setting generally makes traumatizing encounters unavoidable.
Then there is the stress of deciding whether to report the rape to anyone, whether friends, family, or school. Roughly one-third of students who experience unwanted sex do not report the incident to anyone, including friends or family.31 No more than 10% report their experiences to a school official.32 Many reasons are offered for the failure to report sexual assault, including fear of not being believed or taken seriously, not knowing it was sexual assault, not wanting others to know about the experience, belief that nothing will be done, insufficient proof, and fear of retaliation from the offender or his friends.33 Additional motivations discourage reporting by racial and sexual minority survivors, such as fear of betraying the minority community34 or, in the case of LGBTQ survivors, fear of being outed.35 Last but not least, school administrators concerned about the reputation of their institutions are often disinclined to encourage victims to come forward.36
If the victim does decide to report, she faces possible retaliation from her social group, especially, it seems, if she is a member of an athletic team or a sorority where a reported sexual assault might damage the group’s social currency. The reaction of one’s school, too, can be re-traumatizing. In fact, Dr. Jennifer Freyd, a researcher at University of Oregon, has developed the term “institutional betrayal trauma” to describe frequently reported effects experienced by victims who report sexual assault to their schools.37
The PTSD and emotional fallout after a sexual assault should not be minimized by critics afraid that women will “cry rape” and men will be unfairly punished. Lizzy Seeberg from St. Mary’s College and Trey Malone from Amherst each committed suicide in the wake of their sexual assaults. Lizzy was threatened with retaliation by members of the Notre Dame football team for accusing one of their fellow players.38 Trey cited Amherst’s callous reaction to his reported assault in his suicide note.39
We can consider the externalities, then, of false positives or false negatives on either side. On one hand, rigorous efforts to combat sexual assault might chill some spontaneous sexual activity. Students might be more unwilling to “hook up” because of fear of miscommunication or fear of being accused of sexual assault. Critics additionally cite potential chilling effects on speech by making professors and students afraid to talk about these important issues for fear of liability. And as discussed above, accusations and investigations can adversely affect the accused student as well.
But these potential harms are overblown: despite the fact that campus sexual assaults almost always impair the victims’ educational experience, often severely, the vast majority of perpetrators receive no disciplinary action whatsoever from their university.40 Of the small minority of assailants who are found to have committed sexual assaults, less than one-third are expelled from their universities.41 By contrast, the costs to the community of not effectively addressing sexual assault include all the harms associated with a hostile environment. These include loss of life through suicide and lifetime negative impacts on performance and mental health. Females might forego an academic opportunity because they fear being raped and not having any recourse if they are.42 Considered in this light, if the private and public costs of false negatives are at least as high as the private and public costs of false positives, then a set of procedures that is at least as protective of the complainant as it is of the accused is justified.
But schools cannot focus their efforts exclusively on responding to sexual assault — by the time a school is responding, the harms to the victim have already begun to be inflicted. Rather, schools must work to prevent sexual assault in the first place. Although adequate response is essential, schools cannot prevent a hostile environment without first recognizing how sexual assault operates. Critics argue that alleged instances of sexual assault are often mere miscommunications, in which an alleged perpetrator believes that consent has been given when in fact it has not. But is that characterization accurate? We must look to the facts on the ground to make that determination.
II. The Facts on the Ground: Some Case Examples from My Files
Here are descriptions of several cases on which I have worked over the past decade, to give you a sense of the reality of sexual assaults on campus.43 In 2002, the Coalition Against Sexual Violence at Harvard asked for my help in getting the administration to take sexual assault cases more seriously. One member, for example, reported that she had been sexually assaulted by another Harvard student after a party. Because she was incapacitated by alcohol, she was not clear on the details. When she reported that the assailant had had sexual intercourse with her while she was practically unconscious, she was asked why she did not push him away. No action was taken against him.
The next major case I worked on involved a young woman who was gang raped by three football players at Notre Dame. In that case, the school had turned over her statement to the players in advance of police questioning, which enabled them to collaborate on a story. The campus police officers who gave them the information, thereby violating the school’s written policy and assurances of confidentiality, also worked parking cars at football games on weekends and knew the men. The fourth assailant who did not complete the rape was found guilty on lesser charges in court, but the others saw no criminal sanction for a brutal and premeditated gang rape.44
Another case involved a young female student who was out with friends drinking. When her friends wanted to go elsewhere for the night, they dropped her off at a male friend’s room, who said he would take care of her until the effects of the alcohol wore off. Instead, he and another male friend raped her. One of the accused men then bragged to a third friend about what the two men had done, who in turn then circulated the story in an email to his living group. The email corroborated the young woman’s account, including particular sounds she remembered hearing. She brought a complaint against the men through her school. They were held responsible and suspended, but then hired an attorney who prevailed upon the school to overturn the decision.45
Finally, a case on which I am currently working involves a young woman who was at a college bar with friends and was given a drink that rendered her unable to feel her legs.46 She remembers being put in a cab with another male student whom she barely knew; he took her to his dorm and violently raped her over the course of the night, causing her medical, physical, emotional, and psychological trauma that has been sufficiently debilitating such that she is no longer in school. The school chose not to investigate the case or inform her of her student rights.
Other cases, too many to name here, involved a single perpetrator who knew or barely knew the victim, incapacitated her, often raped her, and impaired or destroyed her educational trajectory. These cases, a mere sample from my personal experience, illustrate the reality of much campus sexual assault: not miscommunication, but deliberate targeting.
III. A Theory of Target Rape
David Gallagher was a member of the Sigma Chi fraternity at Arizona State University when he and his fraternity brothers allegedly sexually assaulted Anna Babler.47 Babler, a freshman at the time, filed a civil suit against him and other fraternity brothers, alleging a scheme in which the fraternity men threw a toga-themed party for her sorority48: They had arranged buses to take the young women to a restaurant that they had rented for the night, where they served alcohol to underaged women, including the victim, and where one of the fraternity members drugged her drink.49 The fraternity men took the women’s purses that were left on the bus in order to lure them back to their house after the dinner.50 Babler awoke the next morning in the frat house “missing her purse and some of her clothes and in severe rectal pain.”51 The night of the rape, Gallagher had posted a picture on his Facebook page of a young, thin, white woman with long hair lying on the floor with her wrists and ankles bound with computer cord.52
When discussing this case with the woman’s attorney, Baine Kerr, the term “target rape” occurred to me as a more accurate description of the perpetrators’ behavior than the commonly used phrases “acquaintance rape” or “date rape.” In target rape, the acquaintance is made for the distinct purpose of accomplishing the rape. It is critical to understand that target rape is not the product of misunderstandings between two equally situated students, but rather a patterned behavior that is premeditated, intentional, and often repeated. The term shifts attention to the behavior of the perpetrator rather than focusing on the relationship between the victim and offender. It applies to multi-perpetrator sexual assaults as well as single-perpetrator ones that are facilitated by cooperation among male members of some exclusive social group. Within this concept, the target does not have to be specifically identified at the outset. When an individual declares his intention to “go out and get laid tonight, no matter what,” this may be a precursor to target rape. His victim may not be a date, or even an acquaintance, but more likely someone he meets that night. He might incapacitate her through drugs or alcohol (or both) to make her more vulnerable.53 The concept of target rape builds on the work of Dr. David Lisak, whose research into “undetected rapists” indicates that students who commit campus rape act in intentional, premeditated, and predatory ways.54
Target rape describes cases where males ally together in sexual pursuit of females not only regardless of the female’s sexual desire, but often in deliberate violation of it. Male-only exclusive spaces, such as fraternities or athletic teams, often serve as breeding grounds for the transmission of misogynistic attitudes that contribute to a sexual culture on campus that devalues women. Humor and “fun, drunken, irresponsible” college behavior cloaks — or tries to — the sexual dominance men are asserting, creating an environment of rape-supportive attitudes.55 Party themes, for example, that constantly assign women to the role of prostitute to serve the sexual pleasure of men, indicate male dominance.56
These attitudes are easy to find, and in fact often permeate male-dominated campus institutions. For example, many assaults are perpetrated by members of male athletic teams.57 Football seems to foster this behavior particularly often.58 Such assaults often appear to reflect alliances among many players — generally implicit (but sometimes explicit) agreements to commit the assault, to cover it up, or to keep it from hurting the season.59 Coaches, college administrators, and even prosecutors sometimes participate in these alliances.60 A recent example is the rape case at Florida State University (FSU), in which a female student, Erica Kinsman, reported being raped after being given a drink at a bar that rendered her incapacitated.61 She did not know her assailant’s name when she went to the hospital for a rape kit just hours after the assault, but did recall an encounter with an FSU football player at the bar prior to the assault.62 Kinsman alleges that even though she reported the name of the suspect — Jameis Winston — when she learned of it a few weeks later, FSU failed to even question him until after the football season had ended and he had led the team to win the college football national championship.63 The male prosecutor who dropped the criminal charges actually laughed during a press conference about the case.64 Another example involved three basketball players recently suspended from the University of Oregon for gang rape.65 One of the players, Brandon Austin, had previously been suspended from the Providence College basketball team for sexually assaulting a female student with another player, who had also been suspended.66 Austin had transferred to University of Oregon while on suspension.67 One of the biggest Title IX football cases involved University of Colorado-Boulder (CU) players and recruits accused of raping two young women. Lisa Simpson alleged that football players arranged for recruits to gang rape her and her roommate after they had gone to bed after a party.68 The university settled the case for $2.85 million.69 A number of officials from CU resigned or were fired amidst the controversy, including the college president and the football coach.70
We know from reading the news how often fraternities are implicated in target rapes. And a look into fraternity social culture reveals attitudes that treat women as sexual objects for conquest rather than human beings.71 For example, a fraternity brother at the University of Southern California published a weekly “Gullet Report” in which he described different names for different targets, explaining his reference to females as targets: “[t]hey aren’t actual people like us men.”72 While gang rape may be one of a woman’s greatest fears, some fraternity members act as though it is a harmless bonding activity. Studies on masculinity indicate that gang rape, from the perspective of perpetrators, typically has more to do with cementing a bond between men than with the (often incapacitated) woman being raped.73 The voyeurism evident in these cases is an important dimension of the assertion of male dominance in a gang rape, yet it is underanalyzed in the literature.74 Cases of a single fraternity member raping an incapacitated woman often occur in rooms where other brothers can watch, and frat houses and other exclusive male clubs designate rooms for this purpose.75
The Supreme Court has recognized that exactly this type of target rape is evidence of gender-based animus. In United States v. Morrison,76 the late Chief Justice Rehnquist wrote for the Court that if plaintiff Christy Brzonkala’s allegations of rape were true, “no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison.”77 In that case, the Court struck down the civil rights remedy of the Violence Against Women Act, but implied there should have been a remedy for the assault claimed in the case.78 Brzonkala’s case has enormous significance here, as it is a clear example of target rape and of the male alliances between football players that insulated the players from being held responsible.79 In brief, she alleged that she was raped by two football players, Antonio Morrison and James Crawford, within half an hour of meeting them.80 She alleged that the rapes were committed early in her freshman year at Virginia Polytechnic Institute.81 She also claimed that immediately following the rape, Morrison stated, “You better not have any . . . diseases.”82 Several months later, Morrison was overheard in the cafeteria making “boasting, debased remarks about what [he] would do to women.”83 All courts that heard the case considered this to be evidence of gender-based animus.84
The school initially suspended Morrison for a year after a hearing.85 Crawford was not held responsible, at least in part because another football player, Cornell Brown, testified that Crawford was with him at the time of the rape.86 However, Brown was also added to Brzonkala’s complaint for aiding and abetting the other two players, by guarding the door of her dorm room.87 Unbelievably, Virginia Tech overturned Morrison’s sanction in an appeal of which Brzonkala was not informed, and suspended his suspension until he graduated.88 Brzonkala alleged that the football coach, Frank Beamer, inappropriately intervened in the process to protect the player’s ability to stay on the team.89 Morrison returned to Virginia Tech on a full athletic scholarship.90 Brzonkala was unable to continue her education at Virginia Tech and withdrew.91
This problem is cultural, in that these men are not taught that targeting women is not an acceptable social practice and can be a precursor to rape. Schools must recognize that language such as that used in the “Gullet Report” is not merely bantering between friends, but rather that it evinces a sexually hostile environment and publicly warns of potential rapes. Such language and behavior signal that problematic norms exist either within a particular group or on campus more broadly, and should prompt the school to address this targeting, rape-supportive behavior immediately.
The courage of a growing number of victims to disclose their sexual assaults, combined with the recent increase in the pressure brought to bear on colleges by the Department of Education,92 has prompted many college administrators to initiate reforms of their institutions’ sexual assault policies. Unfortunately, too often those reforms have been limited to adjustment of the rules governing the initiation and resolution of complaints. Those rules matter, of course. But transformation of the environments that stunt the education of so many women requires much more.
IV. Measuring Male Dominance on Campus through Climate Surveys
I recommend that schools conduct campus climate surveys that focus not only on occurrence and prevalence of sexual assault, but also critically measure the level of male dominance on campus. This is what Title IX was designed to remedy: hostile environments created by sex discrimination. For the most effective intervention, schools must honestly confront the level of male privilege and supremacy on campus and work to make their campuses more equal.
Campus climate surveys enable a school to collect data about its own students and campus environment. Such surveys are now recommended by the White House Task Force to Protect Students from Sexual Assault and may be required by 2016.93 Given the number of schools under investigation by the U.S. Department of Education, and the amount of substantive guidance from the White House Task Force available on how best to conduct such a survey, schools have both incentive and ability to confront honestly how sexual assault is being perpetrated at their institutions.
The surveys should measure the level of male dominance on campus. The key indicia include: the number and character of all-male, exclusive spaces, such as fraternities, social clubs, and athletic teams; male social capital and social currency; party themes; and control of social spaces. These four factors, which facilitate a disproportionate number of assaults, are present to different degrees in different schools. An administration or faculty seriously interested in purging their institution of the scourge of sexual assault must find out what causes it and where it happens. To that end, a well-designed survey is essential.
These areas reveal an overall indication of male status, which is important because of the association between high or inflated male privilege on campus and the commission of sexual assault. Interestingly, some women are starting to fight back about the unequal rules governing alcohol and fraternities. For example, the rules that govern the Greek system often allow fraternities to serve alcohol but forbid sororities from doing the same.94 As a result, the party scene on campus takes place at fraternities where men have control over who is admitted to the parties, the alcohol, and the physical spaces in which the parties take place.95
Investigating a school’s cultural climate around sexual assault involves identifying high-risk social environments, which are male-only clubs that hold high social currency and/or control over social spaces. Party themes that consistently degrade women as “hos,” sexually explicit fraternity theme songs, and misogynistic rap videos by football players96 are cultural clues that speak to what goes on in the campus sexual culture. When the Yale fraternity pledges chanted loudly at night outside the freshman girls’ dorm that “No means yes! Yes means anal!”97 that said something significant about the level of male sexual entitlement at the school.
As schools have different characteristics, including distinct social and cultural hierarchies and structures, they need to identify the particular environmental factors that contribute to the commission of sexual assault on their campus. With this information, they will be able to create effective policies tailored to disrupt the social climate that enables predatory sexual behavior.98
From an educational standpoint, awareness programs should engage all students as members of a community to examine attitudes and beliefs that may lead to assaultive behavior. Media literacy around pornography, consent, and popular culture expands the discourse on critical issues of gender equality.99 I have found that, far from chilling speech, students are hungry for the opportunity to speak openly about how messages from pornography and popular culture affect their sexuality, their self-image, and their relationships.100 I have found this to be quite effective in developing peer-to-peer educational initiatives around sexual respect. Bystander intervention and risk reduction programs are now mandated under the Campus SaVE Act, and schools should be quite focused on their preventive education efforts.
In a school’s response, an understanding of traumatic effects on memory, the brain, and learning is essential, not only in providing accommodations that would best enable the victim to continue her education with minimal disruption, but also in the investigation and resolution of the case. It matters in assessing credibility and evidence that a trauma victim might not be able to recall facts in a linear way, as the administrators may expect her to. Gaps in an account of rape do not necessarily imply a lack of credibility. Rather, the victim’s account and its traumatic effects should be considered in the wider context of the case.
Finally, schools should resolve cases with a clear understanding of the hostile environment criteria under Title IX. These include a credible allegation of sexual assault, evidence of trauma induced by the event, the trauma’s interference with the claimant’s education, and evidence of gender-based animus. As David Lisak says, given low reporting levels, schools are given a precious opportunity to act for the safety of all their students when someone has the courage and ability to come forward.101
Educating people about and preventing target rape should be the focus of schools’ efforts to address campus sexual assault. If it is, the school will have the best chance of changing its internal social and sexual culture.
* Lecturer on Law, Director, Gender Violence Program, Harvard Law School; formerly Senior Counsel in the Office on Violence Against Women, United States Department of Justice. The author wishes to thank Nicolas Sansone for his extraordinary research and writing assistance, as well as Harvey Berkman, Lisa Cloutier, Schuyler Daum, Terry Fisher, Anisha Gopi, Laura Jarrett, Baine Kerr, Emily Norman, Jane DiRenzo Pigott, and Cari Simon for other assistance in developing this article.