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Make rape a single-sanction offense

We deserve a community of trust, not a community of fear

The University of Virginia has a problem with rape.

We know this because of the studies showing that a substantial number of the University’s female undergraduates are raped during their four years here. We know this because of University Police Chief Michael Gibson’s emails reporting sexual assaults by a “non-stranger” — a term that almost certainly means that a fellow University student was the attacker. And we know this because of the stories friends tell us under their breath: stories that make us wonder how much goes unsaid.

Our headline is intended as a provocation. The University cannot make rape a single-sanction offense for a host of legal reasons that this issue explores. Nor should the Honor Committee have jurisdiction over sexual misconduct cases. We draw the parallel to illustrate the conflict of values that a continued problem of sexual violence at the University brings to the fore.

In recent years a contradiction in how the University community governs itself has become palpable. We expel cheaters, but we do not expel rapists.

On our honor

The honor code extends beyond the classroom. The University’s prohibition against lying, cheating and stealing is about more than academic integrity. It is also an attempt to fashion ourselves into the kind of community we want to be.

If we accept an understanding of honor as more than an academic code — if we take honor to offer a set of guiding principles for student life — it is undeniable that rape violates the spirit, if not the letter, of the University’s honor system.

Justice requires that worse offenses merit worse punishments. And which is worse: sexual assault or honor code violations?

Honor offenses and sexual assaults both dissolve the bonds of trust that are supposed to unite University students. But sexual assault damages the community of trust to a greater degree. Rape involves an element of targeted brutality and violence that honor offenses do not. The discovery that a classmate cheated on a test replaces trust with suspicion or frustration. The awareness that a substantial portion of our peers will be sexually assaulted trades trust for terror.

Sexual assault tends to be a repeat offense. A 2002 study by psychologist David Lisak found that serial rapists account for nine out of every 10 campus rapes. The risk of repeat offenders offers another reason why applying the single sanction to sexual assault would be desirable.

An honor offense inflicts harm on the community. A sexual assault damages the community, yes, but it primarily damages the victim. The harm lasts far beyond the attack or the end of a toxic relationship. Reports of survivors dealing with post-traumatic stress disorder, depression and suicidal thoughts are all too common.

By any reasonable measure, sexual assault is worse than an honor offense both for the community and the individual. At the University, however, students who are convicted of honor code violations are expelled, without exception. Students who are convicted of sexual misconduct are not. The Sexual Misconduct Board, which conducts disciplinary hearings for sexual-assault cases, has the power to expel students. But the school has not expelled a student for sexual misconduct in more than a decade.

On this basis, we can conclude that the University’s structures of punishment are unjust. A worse offense does not receive a worse punishment.

A theory of justice

The University is not the only school that has a problem with sexual assault. Rarely do schools expel rapists. The reason, as student sexual-assault advocate Emily Renda explains in depth in this issue, is a tension between due-process claims and Title IX. Title IX, a federal anti-sex-discrimination statute, specifies, as of a 2011 “Dear Colleague” letter issued by the U.S. Department of Education, that the standard of proof in university sexual-misconduct hearings must be a “preponderance of evidence” standard, analogous to 51 percent.

But a student — even someone who is accused of rape — has a recognized legal interest in his or her education. So expulsion generally requires a high standard of evidence. Sexual-misconduct expulsions are easily appealed on due-process grounds because of the low standard of proof and the host of due-process concerns that frequently arise in campus sex-crime cases: the “he said, she said” problem and, in the case of alcohol consumption, unreliable memories.

The University is legally stuck. Other schools are as well. Bound by regulatory schemes and a labyrinth of legislation, schools can support survivors in other ways: by removing an alleged perpetrator from a victim’s class or dorm, or enacting a “no contact order” between victim and assailant. These strategies are not perfect. But they can help reduce the pain survivors undergo.

Hopes for change

Ultimately we must modify the legal codes that pit due process against Title IX to the detriment of student sexual-assault survivors. But even in the context of a flawed system, we can work to improve the lives of students affected by sexual violence, and prevent other attacks.

First, we must find out more about sexual violence at the University and devise ways to encourage students to report incidents. The two aims are connected. The more underreported sexual violence is, the less we know about it and the less help students get.

Getting at the truth of sexual violence is difficult because it forces us to question many of our fundamental assumptions about gender and sexual behavior. In addition, guilt, confusion and self-blame often cloud a student’s understanding of an incident.

The most recent study of sexual-assault rates at the University is a 2005 report by Jacqueline Chevalier Minow and Christopher Einolf. Minow and Einolf found that 17.6 percent of female undergraduates are raped during their four years at the University. Estimates based on current national statistics suggest that more than 1,500 female undergraduates will experience a sexual assault or attempted sexual assault at the University.

Reporting rates, however, are very low. In the 2013 fiscal year, the Women’s Center received 20 reports of sexual misconduct. Associate Dean of Students Nicole Eramo, who chairs the Sexual Misconduct Board, estimated in an email that the body had heard just over 20 cases since 1998.

The problem of sexual violence is in part a problem of voicelessness. A sexual assault takes away a victim’s voice and autonomy. Encouraging students to report sexual-misconduct incidents and digging up more data about the frequency of sexual assaults at the University would help us better understand the problem we face. And if we can better understand how sexual violence manifests itself at the University, we will be in a stronger position to enact strategies that reduce the number of sexual attacks in our community. Increased information might also help strip away the assumptions — such as injurious perceptions that sexual attacks only happen to certain kinds of people doing certain kinds of things — that inhibit us from supporting survivors fully.

Second, we must realize that as University students we have an obligation to assist each other. Even the frequent admonition against being a “bystander” doesn’t fully capture the kind of atmosphere we need to cultivate in order to reduce sexual violence at the University. We need to treat sexual violence with the urgency it deserves. Doing so requires empathy. We must feel our friends’ woundedness, and take that woundedness seriously. Only by trying to understand and feel the terror and anger that a trend of sexual violence leaves in its wake can we arrive at solutions guided by compassion.

Third, we must seek to prevent sexual attacks by challenging harmful assumptions — sometimes manifested in a stray remark — that make for a hostile sexual environment. Regardless of how someone is dressed, how many drinks they’ve had, if they’ve flirted, if they’ve kissed you already — everyone has a right to say no. Healthy sexual relationships require enthusiastic consent.

Finally, we cannot succumb to fatalism. Sexual violence is not inevitable. Nor is it something we must endure. We cannot endure it any longer.