University Responsibility for Sexual AssaultRandall Holcombe • Friday February 27, 2015 12:47 PM PDT •
“The Hunting Ground,” a movie about sexual assault at major universities, supports the argument that universities are not doing enough to respond to accusations about sexual assault by their students. The article hits close to home for me because, as a faculty member at Florida State University, my university is one of the ones highlighted in the movie.
FSU is featured because Jameis Winston, a former FSU quarterback who has entered the NFL draft, was accused of sexual assault in 2013. Senator Claire McCaskill has advised any NFL team interested in drafting Winston, “Watch this movie.”
I am not passing judgment on Winston or his accuser. That is the responsibility of our legal system. I am questioning what responsibility the university has in the matter, and as an FSU faculty member, I have a particular interest in the responsibility of FSU in the Winston case.
New York Senator Kirsten Gillibrand says, “Schools all across the country will be happy to withhold your diploma if you didn’t pay your fees. They’ll be happy to kick you out of school if you cheated on a test. But the statistic for students who have violated other students, who have sexually assaulted them and raped them — only one in (three) is expelled for that crime.”
Should schools expel students who are accused of sexual assault?
Universities are in the business of providing education and certifying students by giving degrees to students who meet certain academic standards. Grocery stores sell food to people who are accused of sexual assault. Gas stations sell gas to people who are accused of sexual assault. Should a student’s academic credentials depend on being free of such accusations?
Let’s put this in the context of FSU and the Winston case. Here are some facts.
First, all of the events in the case took place off campus. Winston met his accuser at a bar and they went to his off-campus apartment, where she alleges she was raped; he alleges their activity was consensual. Should universities bear responsibility for the actions of their students when they are away from campus?
Second, the accusations were investigated by the Tallahassee police and evidence was presented to the district attorney, who decided it was insufficient to bring a criminal case against Winston.
Third, the university undertook a Title IX investigation and determined that there was insufficient evidence to discipline Winston.
I am not siding with Winston, nor trying to minimize the severity of rape and sexual assault. I do think, in this particular case, Florida State University has done everything it should do, and maybe more. Consider the three facts above.
First, because all of the events took place off-campus, accusations of criminal behavior should be handled by law enforcement, not by an educational institution. Even if the events occurred on-campus, there is still a compelling argument that criminal activity be dealt with by law enforcement. If sexual assault occurs at a grocery store or a gas station, nobody argues that those businesses deal with or sanction the perpetrators.
The university does have its own police department, which weakens that argument somewhat, but it does not have its own judicial system, and I see no justification for an educational institution passing judgment on sexual assault or any other criminal accusations.
Second, after the legal system determined there was insufficient evidence to bring charges against Winston, it would appear presumptuous for the university to second-guess the legal system and decide that it is better able to assess the evidence than the legal system.
It is true that under Title IX the standard of evidence is lower, perhaps making a determination of guilt more likely. But why would an educational institution be in a better position to determine guilt than the legal system? If a lower standard is desirable, then change the law rather than pass judicial responsibilities on to a school.
In this case, people have criticized the police and prosecutor, and I take no side in that argument. Even if they did a poor job in the case, it is difficult to argue that an educational institution should make up for the ineptness of the legal system.
Third, the university was required by Title IX to undertake its own examination, which it did, and also found insufficient evidence in the case. Though this was required by law, it is beyond what seems reasonable, for the first two reasons. If the alleged crime occurred off-campus, and if the legal system found insufficient evidence to bring charges, it would appear to be well outside the university’s responsibility.
Universities are educational institutions, not law enforcement or judicial institutions, and the requirements of Title IX place responsibilities on universities that rightly belong in the judicial system. The arguments given here for Title IX enforcement of sexual violence point only toward the ineptness of legal institutions to handle complaints of sexual violence, but if that is true, there is no reason to think that educational institutions are better situated to deal with criminal activity than is law enforcement.
If there is a problem, the solution is to improve law enforcement, not to require educational institutions to take up the slack where legal institutions come up short.