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Where UVA Went Wrong: Students Need to See Rape as a Felony, Not Just a Campus Infraction

Robert Emerson

What lessons did Americans learn from last week’s Rolling Stone account of the sickening 2012 gang-rape and beating-to-a-pulp of a first-year female student—“Jackie”—at the University of Virginia’s Phi Kappa Psi fraternity? Some of the takeaways were obvious and led straight to action. Others aren’t so obvious but are just as alarming.

The obvious conclusions first: Fraternities have become more like lab experiments for the distillation of male sexual aggression than the mini-leadership training institutes their supporters claim they are. That’s why UVA’s president was right to forbid all fraternity and sorority parties until the school can figure out what to do about them. Violent felonies call for police investigations, which is why the school referred the case to the Charlottesville police. There’s nothing cute or defensible about “Rugby Road,” the popular fight song named for UVA's Frat Row whose lyrics punctuated the Rolling Stone narrative (“Ten thousand Pi Phi bitches who get down upon their knees/But the ones that we hold true, the ones that we hold dear/Are the ones who stay up late at night and take it in the rear”). This is why the University Glee Club has decided to stop singing it—temporarily, anyway.

But here’s a detail that’s harder to understand: Why did it take two years and a story in a national publication for anyone to report this outrageously violent assault to the police? Who’s to blame for the delay? As it turns out, just about everybody. When the victim stumbled, barefoot and bleeding, to a street corner and called three friends, they were the ones who discouraged her from going to the hospital (which would have reported the crime to the police) or the police. Two of them were so worried about being ostracized as friends of  “the girl who cried ‘rape,’” that they sent the confused girl home to sleep it off. A year later, when the young woman’s academic dean sent the now-suicidal and flunking student to the dean of students who handles sexual assault on campus, the dean laid out her options in a neutral tone designed to give the girl the sense that the choice was hers: she could report it to the police or not. She could lodge a formal complaint and her case would go to a Sexual Misconduct Board that would hear it and decide whether and how to punish the men. Or she could seek “informal resolution,” which meant talking the issue through with her rapists. This profusion of choices apparently so bewildered the depressed woman that she did nothing.

Should she have gone to the police? Of course! Did her friends give new meaning to the word selfish? Absolutely. Should the university have called the police the minute they heard her story? Definitely. Is UVA a school that failed to respond to the nasty sexual consequences of its Greek party scene? Apparently. But there’s one more party to hold accountable: the federal government.

A common explanation for universities’ decision to hear sexual-misconduct cases themselves is that they’re afraid of the bad publicity that comes with a criminal investigation. This may be true in some instances, but it overlooks a much more powerful influence on how universities handle such matters: The U.S. Department of Education’s Office for Civil Rights or OCR. 

In 1992, the U.S. Supreme Court expanded Title IX, a provision of the Educational Amendment that ensured equal educational opportunity regardless of gender, so that it covered sexual harassment as well as, say, athletic facilities. The thinking was that a campus that tolerated violence against women implicitly discriminated against them. Since then, the OCR has required universities to adjudicate sexual misconduct cases themselves, whether or not there’s a criminal investigation. If they don’t, they risk losing federal funding (so far, it should be said, no university has been found so far out of compliance that its funding was actually taken away).

Defenders of the policy offers two reasons for universities to go it alone. First, if they aren’t “pro-active” (in the words of one government document) about making women feel safe on campus, they’ll be depriving those women of their right to an education. Therefore, schools have to weed out the sexual predators in their midst; they can’t count on the police to do that for them.

Second, there’s an epidemic of rape on campus that’s so terrible that the police and courts just can’t handle it.  Numbers range from one in four to one in ten women who will be raped or victims of attempted rape during their time on campus; as one Office of Civil Rights letter put it, “The statistics on sexual violence are both deeply troubling and a call to action for the nation.” Moreover, there’s a long and unsavory history of rape being dismissed in the courts, or rape victims being treated in the courts as if they were on trial too; only in the past 50 years have prosecutors begun to take rape seriously and obtain a respectable rate of convictions. (Estimates on the rate of convictions after arrest for rape range from as high as 50 percent all the way down to 2 percent, depending on who’s doing the estimating.) “It is important to be aware of the limitations of the criminal process in handling sexual assault cases in general and in achieving convictions in particular,” says Suzanne Goldberg, a professor of gender law at Columbia who helped write her school’s new sexual misconduct policy. “It is not meaningful to say that criminal process provides a sufficient response.”

Let me be clear: To my knowledge, no federal body or university has actively tried to stop a survivor from filing charges with the police, and many campuses provide advocates to victims to help them navigate that scary experience. But as the Rolling Stone story suggests, the proliferating procedures for handling campus sexual assault and the seemingly systemic distrust of the police—communicated either explicitly or implicitly in mandatory orientation sessions as well as when students come in to file complaints—leads to the sense among students that local police are just one option among many, and not an appealing one. It’s telling that when the White House released the findings of its Task Force on Protecting Students from Sexual Assault last April, it glossed very quickly over the role of the police in helping universities check sexual violence; rather, under a section on community partnerships, the report recommended pairing with rape-crisis centers.

So what should universities be doing about violent sexual assault? In those orientation sessions, they should be teaching students to see sexual felonies as felonies—not as violations of campus policy, but as crimes to be reported as soon as possible to police officers trained to investigate them so that prosecutors can prosecute them. If local cops and courts aren’t doing their job, then universities should use their considerable clout in make sure that they do. A study published this year in the Harvard Journal of Law and Gender, for instance, suggested that if universities want to make women feel more comfortable about reporting rape, they should add more women to their campus security police force—as of about half a decade ago, only 17 percent of campus police officers were women. A body of research on regular female police officers shows that not only to women prefer to report rape to them, they’re better at eliciting painful details from victims, which leads to higher rates of conviction. There is no reason that university officials couldn’t be working to help their local police departments make reforms like these.

Last February, an organization called the Rape Abuse & Incest National Network (RAINN) wrote the White House Task Force to recommend that universities work with police departments rather than leave sexual assault to underqualified university administrators: “It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process,” the letter read. “Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault?” Or, as Scott Berkowitz, RAINN's founder and president, told me: “We can’t abandon the criminal justice system.” Treating violent rape as a disciplinary offense—as a thing to be expelled for—“might cut rape on that campus, but it’s not going to cut rape in that city.”

Correction: The article originally misstated the Phi Kappa Psi's nickname as "Pi Phi." The reference has been removed. It also said Scott Berkowitz was RAINN's spokesman. He is the organization's founder and president.