The Right to Not Remain Silent
As true in Texas as anywhere else in the country, parents sending their kids off to college are worried about the rising number of cases, reported and unreported, of sexual assaults on campus. With a spotlight shining on this abuse issue more than ever before, here are the rules, laws and rights everyone should know.
Campus sexual assault is a ubiquitous topic these days. It seems rarely a week passes that another school or case isn’t dominating headlines. If it’s not Baylor, it’s Stanford. If not Tennessee, then Yale. Survivors of sexual violence are speaking out through the media, and more often, through social media, which offers them a direct outlet for telling their stories. As the number of known cases continues to grow, there is an increasing acknowledgement this is not an anomaly; it is, instead, the tip of an iceberg.
Campus sexual assault is most often discussed in relationship to Title IX, a 1972 federal statute best known because it demands gender equity in sports. What many people don’t realize is that Title IX is much more broad than just highlighting sports.
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” the statute reads.
Title IX mandates gender equity at all levels and in all facets of education. The Department of Education’s Office for Civil Rights is charged with making sure any school that receives federal funding meets that requirement. Virtually all schools in the United States receive federal funding, including grade schools, community colleges, vocational schools and cosmetology schools.
This point should be stressed: Title IX is about protecting students’ civil rights. This is fundamentally different than the judicial system, which seeks to remedy criminal actions. Students can choose to report through either system: the one that protects their civil rights or the one that protects them through law enforcement.
Since the late 1970s, students have been attempting to hold universities accountable for poor institutional responses to sexual harassment and violence under Title IX. The argument is that when a university does nothing to address these problems when university officials know about them, they are ignoring a gender-based problem that is precluding at least some students from participating in education. In other words, who can attend class or should be expected to attend knowing the person who assaulted him or her will also be there?
In April 1988, The New York Times published a piece titled “The Reality of Crime on Campus.” Nearly three decades ago, “a growing number of negligence lawsuits against colleges accused of lax security and a greater awareness of ‘date rape,’ gang rape and other crimes against women” were, according to The Times, forcing “schools to confront the problem in an unprecedented way.” The new thing nearly 30 years ago was “seminars and forums on safety and sexual harassment,” as well as improvements to the physical campus infrastructure, like “added lighting and increased security patrols.”
While schools are responding in more robust ways to lawsuits these days, the overall problem remains.
One major hallmark in legislative attempts to mitigate sexual violence on campus was the 1990 Clery Act, named after Jeanne Clery, a Lehigh University student who was raped and murdered in her dorm room by another student in 1986. The act requires universities to annually report statistics involving crimes that happen on campus and to put out timely warnings when there is knowledge of a potential threat to anyone on campus. Additionally, the Clery Act contains the “Campus Sexual Assault Victims’ Bill of Rights,” which includes “the right to have any and all sexual assaults against them treated with seriousness; the right, as victims, to be treated with dignity; and the right for campus organizations which assist such victims to be accorded recognition.” Victims also have the right to counseling, the right to not be pressured to report to authorities and the right to have any assault investigated and adjudicated, among others.
The Obama administration began to focus specifically on this issue in 2011. The OCR published a now-famous “Dear colleague” letter that year that laid out how the Department of Education understood the relationship of Title IX to sexual harassment and violence, and what was expected of schools when they learned of cases on their campuses. The OCR has discussed the general guidelines in a bullet-pointed document that enumerates students’ civil rights. It includes categories like, “Your school must respond promptly and effectively to sexual violence,” “Your school must provide interim measures as necessary,” and, “Your school should make known where you can find confidential support services.”
As of May 4, 2016, according to the Department of Education, there were 230 sexual-violence cases under investigation at 183 postsecondary institutions. On that list were the following Texas highereducation institutions: Cisco Junior College, Paul Quinn College, Southwestern University, Texan A&M University, the University of Texas Health Science Center, the University of Texas-Pan American, Trinity University and the University of Houston. However, not appearing on the list does not mean a campus is safe or that the university meets its legal Title IX or Clery obligations. The OCR does not seek out schools to investigate; a report must be filed before the OCR steps in. For a student or member of the faculty or staff to take that step requires they have working knowledge of the law and how it is applied, as well as time to draft the complaint. Groups like End Rape on Campus and Know Your IX provide information to make this process easier, but the knowledge and time hurdles are significant.
In Texas, specifically, the problem of campus sexual assault is significant enough that the Texas House of Representatives is looking into it. During this year’s interim between legislative sessions, the House Higher Education Committee was tasked with studying “current policies and initiatives at institutions of higher education, including community colleges, and mak[ing] recommendations toward the prevention and elimination of sexual assault on college campuses.”
Representative Donna Howard, who represents District 48 (which includes parts of Travis County) in the Texas House and who is the vice chair of the Higher Education Committee, told Austin Woman that a committee hearing considered: “How do we change the culture of our campus? How do we make sure that we’re supporting the kind of policies that encourage healthy relationships, and also make sure when things happen that there’s a clear procedure in place for what can be done to help the victims so that they are not re-victimized?”
It’s common for victims to not come forward. In September 2015, the Association of American Universities released the results of a nationwide survey, in which 18.5 percent of undergraduate women at the University of Texas reported they had been the victims of sexual assault “by force or incapacitation” while at school there. For Texas A&M, that percentage was 14.8 percent. Of those who reported to the survey that they had been assaulted at UT, only a quarter told anyone in authority, unless they had been incapacitated when the assault occured. Those students only reported to authorities 15 percent of the time. At A&M, 23 percent reported to authorities overall, and 13 percent of those said they were incapacitated. There was a much greater chance that victims would reach out to a friend before they would turn to any authorities.
It’s hard to get any kind of solid statistics about sexual violence because it is an incredibly underreported crime. Victims often do not think they’ll be believed or they worry they’ll be blamed. So many questions get asked about what the victim did that led to the point of the harassment, assault or rape. Did she drink too much? Did she flirt? What was she wearing? Had she had sex with this person before? Did she push her harasser away? Did she push her harasser away hard enough? It can be an unending set of questions for the person who was harmed, rather than a focus on the person who did the harming.
As Amy Ziering, producer of the Academy Award-nominated documentary The Hunting Ground, told Austin Woman, “We have to, as a culture, really change our understanding of these crimes. Take sex out of the equation. They are violent crimes. The second sex gets involved, ‘Oh, it’s possibly consensual.’ No, you didn’t agree to the car accident and you didn’t agree to the rape.”
Victims often remain silent because they are sometimes unsure whether a crime has actually occurred. In a Washington Post/Kaiser Family Foundation survey of college students last year, there was a fill-in-the-blank section labeled “Do you think if a person [blanks], this establishes consent for more sexual activity?” The various fill-in-the-blank actions were “nods in agreement,” “takes off their own clothes,” “gets a condom,” “engages in foreplay such as kissing or touching,” and “does not say ‘no.’ ”
In only two of those options—“engages in foreplay such as kissing or touching,” and “does not say ‘no’ ”—were there overwhelming majority responses (for both cases, three-quarters of respondents) that said those actions did not establish consent for more sexual activity. For the other three options, the respondents were split nearly 50/50. Consent is still very confusing for many people, college students included. For this reason, it can take some victims years to associate what happened to them with assault.
Victims might also choose not to report because they are scared of the person who hurt them and do not think they’ll be protected if they come forward. On the flipside, many victims in college know their perpetrators, care about the person who perpetrated the crime and are worried about the impact reporting will have on that person’s life.
Perhaps more than anything, many victims think nothing will happen if they do report.
In July 2014, at U.S. Senator Claire McCaskill’s bidding, the U.S. Senate Subcommittee on Financial and Contracting Oversight compiled a report about university response to sexual violence. The subhead stated, “How too many institutions of higher education are failing to protect students.” The report found systemic problems at 440 four-year institutions of higher education, including university officials not understanding the scope of the problem on their campuses, a lack of adequate sexual assault training, not investigating reports of sexual violence and not providing or helping to find services survivors need. Reporting is then, perhaps, a waste of a victim’s time and an emotional cost they cannot bear.
Often, in the face of all of this, people feel powerless. Parents, in particular, are worried about where they can send their children to college and, should something happen to their children, whether their daughter’s or son’s university would be responsive, helpful and compassionate. Unfortunately, some universities want to hide incidents of reported harassment and violence since high numbers of such reported cases would seem to make their institutions less desirable in the eyes of potential students, parents or anyone writing a tuition check.
However, very low numbers, or worse, none at all, of reported sexual violence at any given school do not indicate that school has solved the cultural problem of sexual violence. Instead, it more likely is a place where students feel they cannot report when they are victimized. The American Association of University Women found recently, “with about 11,000 campuses disclosing annual crime data, an overwhelming majority of schools certified that in 2014, they did not receive a single report of a rape.” Not one.
Many experts see high reporting numbers not as a failure of the institution, but rather as a university’s acknowledgment of the reality of this violence and as evidence of an environment on campus that encourages victims to come forward. It’s the low numbers (or the zeros) that should cause worry.
Courtney Santana is the founder and executive director of Survive2Thrive, a Central Texas-based foundation that helps survivors of domestic violence who are unable to get into local shelters because of overcrowding. She is a survivor herself. Earlier this summer, her organization screened Ziering’s documentary about campus sexual assault, The Hunting Ground, in Austin, following it with an intimate Q&A with the producer herself. Part of Santana’s interest in the film was professional (She is hyperaware of issues that intersect with domestic violence, including sexual violence.), and part was personal, as she has a daughter who will head to college this fall.
During the last year, as her daughter searched for schools to attend, Santana did her own research.
“When it comes to our kids, we have to educate ourselves about it,” she says, noting she looked into Title IX and that students “need to know what their rights are and that the school is not necessarily their safe space.”
As for the individual universities, Santana conducted basic Google searches on each institution her daughter was interested in. But she didn’t stop there.
“I called and spoke to some of the campus groups around sexual assault,” Santana says. “I got nosy because I know that, of course, [universities] are not going to report there is a super amount of sexual assault.”
She believed she would get more useful information directly from the organizations on campus that exist to educate, prevent assaults from happening and help survivors.
Likewise, Representative Howard recommends examining “how forthright an institution is about the reality of the issue and their efforts to address it. In other words, I would be much more inclined to want my daughter to attend an institution that is honest, that doesn’t pretend all is OK and that can show me they are seriously spending effort and resources to ensure their campus is safe and that their students are respected.”
Rick Gipprich, a campus sexual-assault specialist with the Texas Association Against Sexual Assault, tells Austin Woman that before a student goes off to college, parents “should engage in a conversation about violence on campus, about what to do if something like this happens to them or they witness it or it happens to one of their friends, about what ‘bystander’ means and how to be an effective bystander. I don’t think that happens very often.”
Parents should make it clear that should something happen, their child shouldn’t be ashamed or scared, and that there are resources to help him or her. Just as Santana did, parents need to educate themselves too, Gipprich says. Look up the Title IX office, find out who the coordinator is and where the office is. Know what Title IX and Clery are supposed to do, what the child’s rights are and have a frank conversation about it long before anyone needs to use that information.
The good news is that there is a lot more information now than there ever has been. Know Your IX has a vast amount of information on its website about students’ rights and how to protect them. The White House’s Not Alone program offers a step-by-step guide for survivors, as well as a long list of resources for all kinds of organizations throughout the country that help survivors. Locally, the Texas Association Against Sexual Assault has resources for survivors, one of the most crucial being a site on which users can search for the closest sexual-assault crisis center. These centers provide a range of important services for survivors, including counseling, advocacy and medical care.
Once parents send their child off to college, it’s important to pay attention to any changing patterns in their child’s life. If she has major mood shifts, gains a lot of weight, seems depressed or unfocused, anything that is out of character for her, this could be a sign that something serious may have happened to her, Santana notes. And parents need to have already laid the groundwork for addressing this with their kids.
“Be in communication with your kids,” Santana says, “and let them know that if something happens to them, they can always come to you.”
For those who discover someone they love or care about has been the victim of sexual violence, Ziering says the immediate reaction should be, “Oh my god, I am so sorry. How can I help you? What can I do for you? What do you need?”
Then, let that person decide what he or she wants to do.
“Mothers ask me if they should report, should go to the police,” Ziering says. “There’s no right or wrong. It’s up to the person who this happened to. Whatever you choose to do is the right thing. And there’s no shame or blame in any of that.”
She says to suggest therapy or counseling because the sooner the victim of trauma talks to an expert, the easier her recovery may be.
“Comfort them and empower them,” Ziering says. “Don’t try and right the ship for them. It’s their ship.”
Gipprich is a big proponent of going first to a rape crisis center in the community. He says if a victim does not know what to do, she can call either a national hotline (800.656.HOPE) that can direct her to a local crisis center or call the local crisis center directly. He suggests callers should start asking questions about what they need and want to know until they find the answers.
“We get so caught up in reporting it to Title IX first that we forget that there are all these other things a survivor may need before any of that happens,” he says. “We have to first make sure a person in immediate crisis has access to resources right then and there. And by going through a sexual-assault program, even if it is a campus sexual assault, they have access to an advocate, they have access to a sexual-assault nurse and they have access to someone who can walk them through the entire process.”
At that point, reporting to Title IX and law enforcement are good next steps to take.
There are no easy answers to this issue. Universities are scrambling to meet their legal obligations under Title IX and Clery, but they are taking on a huge cultural problem that no system has yet figured out how to manage or mitigate. Education on the topic is essential but, more than that, getting informed and talking about the issue with friends and family can make a big difference.
“[Sexual violence] is not an easy topic. Let’s create the environment where everybody feels like they are safe and they can talk about it,” Santana says. “If we could create that environment in our own homes, we could be saving our children’s lives or just keeping them from being assaulted and then being in the dark and held silent.”
How to Help
“Our response to someone who discloses their sexual assault is vital and often sets the tone for the survivor moving forward,” says Rose Luna, deputy director of the Texas Association Against Sexual Assault. TAASA recommends the following ways to help if you know someone who is a victim of sexual assault:
◆ Begin by believing. Say things like, “I’m sorry this happened to you,” “I believe you,” and, “This was not your fault.”
◆ Always allow the victim the power to make decisions. Refrain from directing her, but ask questions like, “Would you like to report or notify officials?” and, “How can I help?”
◆ Offer help. While knowing exactly who to contact at a campus is difficult, offer to help research the process and resources available.
End Rape on Campus, endrapeoncampus.org
Know Your IX, knowyourix.org
Not Alone, notalone.gov
Survive2Thrive Foundation, survive2thrivefoundation.org
Texas Association Against Sexual Assault, taasa.org
Campus Sexual Assault Victims' Bill of Rights
From the Clery Act of 1990:
- The right to have any and all sexual assaults against them treated with seriousness; the right, as victims, to be treated with dignity; and the right for campus organizations that assist such victims to be accorded recognition.
- The right to have sexual assaults committed against them investigated and adjudicated by the duly constituted criminal and civil authorities of the governmental entity in which the crimes occurred, and the right to the full and prompt cooperation and assistance of campus personnel in notifying the proper authorities. The foregoing shall be in addition to any campus disciplinary proceedings.
- The right to be free from any kind of pressure from campus personnel.
- The right to be free from any kind of suggestion that campus sexual-assault victims not report, or under-report, crimes.
- The same right to legal assistance, or ability to have others present, in any campus disciplinary proceeding that the institution permits to the accused, and the right to be notified of the outcome of such proceeding.
- The right to full and prompt cooperation from campus personnel in obtaining, securing and maintaining evidence (including a medical examination) as may be necessary to the proof of criminal sexual assault in subsequent legal proceedings.
- The right to be made aware of, and assisted in exercising any options, as provided by state and federal laws or regulations, with regard to testing of sexual-assault suspects for communicable diseases and with regard to notification to victims of the results of such testing.
- The right to counseling from any mental-health services previously established by the institution or by other victim-service entities or by victims themselves.
- After campus sexual assaults have been reported, the victims of such crimes shall have the right to require that campus personnel take the necessary steps or actions reasonably feasible to prevent any unnecessary or unwanted contact or proximity with alleged assailants, including immediate relocation of the victim to safe and secure alternative housing, and transfer of classes if requested by the victims.
10. In addition to the above rights, sexual-assault victims have a right to be free from sexual or physical intimidation in campus housing and in campus accommodations for which the college receives any compensation, direct or indirect.
Photos courtesy of Radius-TWC.