Universities in the spotlight: Sexual abuse on campus – the US perspective

In the US, the start of the academic year is called the “red zone”, as more than 50% of sexual assaults are said to occur between August and November. These assaults are under-reported and, until recently, have not always been properly investigated.  Criminal prosecutions of rape and sexual assault cases occurring on campus are rare and universities have been accused of protecting those accused of sexual assault, including athletes.

There was outrage in 2016 after Stanford University student Brock Turner – a College student and athlete who had attacked an unconscious female student after a ‘frat’ party – only received a light sentence. He was convicted of charges including assault with intent to rape an intoxicated woman.  He faced 14 years in state prison but only served three months in county jail.  The victim’s impact statement went viral and started a wider debate about punishment of sexual assault on campus.  The judge who sentenced Brock Turner was recalled by voters – the first to be removed from office in California in 80 years.  California’s laws were changed in order to give more protection to victims.  The victim – Chanel Miller – has now identified herself and is releasing a memoir: ‘Know My Name’.  Since then, a number of high-profile cases, involving student athletes penalised for sexual misconduct, have hit the headlines.

US colleges and universities have looked at measures to reduce sexual assault on campus. Prevention strategies have become widespread.  Recent advice is to stick together (and not rely on Uber or similar services to take a vulnerable student home), to be aware of the risks associated with binge drinking, to make a plan before heavy drinking sessions, to arrange for someone who looks after the others, to speak up or create a distraction, and not to ignore incidents.  Colleges have faced some criticism as these strategies are sometimes perceived as victim-blaming.

But the main challenge has been to improve the investigation of sexual violence incidents in a system which is fair to all students. In 2011 President Obama released a letter which encouraged universities to adopt the ‘preponderance of the evidence’ standard (similar to the balance of probabilities test) when investigating sexual misconduct.  The current Secretary of Education Betsy DeVos rescinded the letter in 2017.  New guidelines (Title IX Guidelines) allow colleges to use the ‘clear and convincing evidence’ standard – which imposes a higher burden.  This push to protect the rights of the accused has emboldened those sanctioned to bring claims for discrimination.  According to Harvard law professor Jennie Suk Gersen, more than 70 students so far have been allowed to continue their claims, on the basis that unfair procedures were used.  US colleges are also said to be increasingly willing to agree settlements with students who were sanctioned.

What should be remembered though, is that US universities and colleges made egregious failures to investigate allegations of sexual assault over the years. Earlier this month Michigan State University was fined a record $4.5million for its failure to respond to sexual assault complaints made against Larry Nassar – the former USA Gymnastics national team doctor who is thought to have assaulted over 250 women and girls.


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Geneviève Rich, Associate Solicitor, BLM
genevieve.rich@blmlaw.com

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