The XX Factor

Blame Draconian Sex Offender Laws for Underreporting of Campus Assaults

Claire, I’d love to join you in indicting those limp pastries -and the ineffectual bureaucratic dithering they inspire-for the shameful silence surrounding sexual assaults on campus. But there is a bigger factor at play than the fractured reporting system. While loopholes in the current framework certainly assist universities in saving face and steering clear of the U.S. News & World Report ‘s “Best Colleges for Vicious Sexual Predators” list, these permissive policies are primarily a response to the evolution of rape law over the last several decades.

Beginning in the late 1960s, the law of sexual assault underwent dramatic reform, shifting focus from female purity to personal autonomy. Conviction for rape now relies on the victim’s nonconsent rather than a physical display of “utmost resistance,” which had previously set the burden of proof at an unattainably high level and required victims to risk their lives during an attack. These victim-friendly reforms increased the number of successful prosecutions, which, in turn, provided potential complainants with a greater incentive to file police reports.

As bastions of progressive thought, universities should have been perfectly poised to absorb these modern regulations and encourage greater reporting of suspected sexual assaults. But the expansion of victims’ rights and remedies coincided with a corresponding curtailment of offenders’ civil rights. These opposing trends have strained universities’ dual allegiance to victim and assailant, both of whom are students.

Schools are charged not merely with providing a safe learning environment but with molding students’ characters and preparing them to be productive members of society. In the context of campus sexual assaults, rendering justice to one student comes at the expense of branding the other a sex offender, depriving him of employability and any hope of social inclusion. Although the average prison sentence of rape defendants has remained relatively stable over the years, the average time served has increased significantly . And even if a student manages to escape with a light sentence, the stigma persists. With the federal passage of Megan’s Law in 1995 and the enactment of other state-specific restrictions, including a recent New York law banishing sex offenders from Facebook and MySpace, conviction effectively relegates the student to the status of burger-flipping pariah.

While this may be a fitting penalty in clear-cut cases of violent crime, the hazy, bacchanalian atmosphere of a college party complicates the moral calculus. Administrators are loath to destroy a student’s entire future for an isolated incident of poor judgment and impulse control. This is not some relic of the old boys-will-be-boys attitude; rather, school officials recognize the unique role of college as a launching pad for the real world, as a place where students’ inexperience and newfound independence come together to create four years of ad hoc, trial-and-error learning. By weighing the costs and benefits to both the victim and offender of a formal report, universities are simply engaging in the kind of prosecutorial discretion that government attorneys practice every day.

University administrators may point fingers at the flawed reporting system, but the real problem lies with the officials themselves, who feel obligated to look out for the best interests of all their students, victim and perpetrator alike.