U.Va. rape report exposes failed U.S. policy: Column Federal rules have put universities in a damned if you do-damned if you don't position.

Gregory J. Wallance | USATODAY

On Monday, the Charlottesville, Va., Police Department announced that it was suspending its investigation of the alleged rape in 2012 at a fraternity party at the University of Virginia. The story was first reported last November as all but proven fact by Rolling Stone magazine (which has since acknowledged flaws in its reporting). According to the Charlottesville police, they were unable to corroborate the story of the alleged victim, known as "Jackie."

Indeed, the police could not find evidence that there was even an event at the fraternity on the night Jackie claimed to have been raped, although they could not rule out "something terrible" had happened to Jackie. But the U.Va. incident says less about a journalistic rush to judgment than it does about a misguided federal policy to deter campus sexual assaults that is sowing chaos on campuses.

Universities and colleges, as witnessed by U.Va., have been in an impossible damned if you do, damned if you don't position, ever since the U.S. Department of Education's announcement on April 4, 2011 that, under Title IX of the Education Amendments of 1972, any college or university receiving federal aid will be held accountable for failing to deter and punish campus sexual assaults.

Currently, more than 100 universities and colleges are under investigation by the Department of Education for their alleged mishandling of sexual assault cases (up from 55 last May), including schools long in the forefront of advancing women's rights and progress.

Despite the tremendous resources expended by schools on Title IX compliance, there is no empirical evidence that the policy has deterred campus sexual assaults; in fact, there is confusion even over the rates of such assaults.

One problem is that the Title IX policy rests on the flawed premise that institutions of higher learning are good at law enforcement. But no one would expect a university to investigate and prosecute a campus murder, yet sexual assault cases, especially rape, are just as challenging, if not more so, as illustrated by the Charlottesville Police Department's experience. The predictable inability of academic institutions to act as a combined police force, prosecutor's office and court has led to extraordinary frustration and fury by students. Dozens of lawsuits are pending against schools by students alleging that their claims of sexual violence were mishandled and by students alleging that the accusations against them were unfairly adjudicated. Indeed, U.Va. was pilloried across the country for not having done more to stop a fraternity rape that may never have occurred.

Universities and colleges, including the most elite institutions, are in over their heads, as witnessed by their unworkable sex policies. Sex is coercive at Yale University if there has not been "positive," "unambiguous," and "voluntary" agreement, which unrealistically assumes that consent can never be implied but must be expressly stated.

At Harvard University, sex between students who are "impaired" by alcohol can be coercive even though many undergraduate sexual encounters are preceded by drinking by both partners. Indeed, when Harvard University announced procedures for adjudicating rape and sexual assault cases, it was publicly denounced by 28 professors at Harvard Law School who claimed that the procedures were unfair to students accused of sexual misconduct.

The other problem with the Title IX policy is that it ignores the off-campus social forces over which universities and schools have no control. Students don't suddenly turn into sexual offenders when they show up to register for freshmen classes. Some already are, not infrequently those who played youth contact sports, which researchers have found may be associated with violence, including rape and sexual assault.

When a policy isn't working, it should be changed. Several states, including New York, are considering legislation to require mandatory reporting of campus sexual assaults in at least some circumstances to local law enforcement. To be sure, many victims' advocates argue that this will discourage students from reporting a sexual assault to anyone because not all law enforcement agencies have the competence or sensitivity of, say, the Manhattan District Attorney's Office's pioneering Sex Crimes Unit. But there is never going to be a perfect solution and the federal money spent on Title IX could more wisely be used to train local law enforcement to better understand the unique needs of sexual assault victims.

After four years of a failed Title IX policy, the time has come to recognize that sexual assault at America's universities and colleges is a serious problem that must be dealt with by law enforcement and not just by academics.

Gregory J. Wallance, a lawyer and writer in New York City, is a former federal prosecutor.

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