The XX Factor

The Crisis at Baylor Proves Colleges Should Handle Rape Cases, Not Leave Them to the Courts

Art Briles, pictured here at Amon G. Carter Stadium in Fort Worth, Texas on November 27, 2015, was fired this week from his post as head coach of the Baylor Bears.

Photo by Ronald Martinez/Getty Images

Baylor University has done what earlier this week seemed unthinkable: The football-crazed school fired its coach, Art Briles, due to the persistent mishandling of sexual assault charges leveled against his players. The school’s president Kenneth Starr (yes, that Ken Starr) has also been demoted. On Thursday, Baylor released a report—which it commissioned from the law firm Pepper Hamilton—that shows why both Briles and Starr needed to go. That report also makes a point that needs to be heard far beyond Waco, Texas: It is essential for schools to adjudicate charges of sexual assault on their campuses rather than leaving them to the criminal justice system.

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The Obama administration has made an unprecedented push for schools to improve their handling of sexual assault cases. This started in 2011, when the Department of Education sent out a “Dear Colleague” letter reminding colleges that they must provide recourse for victims of sexual harassment and assault. Schools that did not do so would be in violation of Title IX, the federal law that prohibits sex-based discrimination in education. Given colleges’ horrendous track record in this area, as well as their institutional interest in keeping accusations out of the public eye, some argue that this approach is wrong-headed—that police departments and courts of law are better-equipped to handle such serious crimes. Bernie Sanders, for one, expressed exactly that view at a presidential forum in January.

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Baylor is an illustrative—albeit extreme—example of why that point of view is so mistaken. The school’s venerated football team appears to be the root of the problem. Two former Baylor players have been sentenced to prison for rape, and at least four others stand accused of intimate partner violence or sexual assault. The Baylor football team is not only perceived to be “above the rules,” according to the Pepper Hamilton report, but in fact maintains “an internal system of discipline, separate from University processes, which is fundamentally inconsistent with the mindset required for effective Title IX implementation, and has resulted in a lack of parity vis-à-vis the broader student population.” It would be wrong, though, to see the football program as some kind of rogue state within the university. Briles and his team were enabled by the school’s administration, which believed it had no responsibility to adjudicate allegations of sexual assault—that it was the courts’ problem, not Baylor’s.

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As other universities, under pressure from the Education Department, reexamined how they handle sexual assault, Baylor stood still. Pepper Hamilton’s report explains that Baylor “failed to effectively implement Title IX” in the wake of the Dear Colleague letter. “Implementation efforts were slow, ad hoc, diffuse, and uncoordinated,” it continues. “Senior leadership failed to recognize the significance of the national context, including evolving guidance from [the Office for Civil Rights] and high profile examples of institutional failures at peer institutions.” Until November 2014, when the school hired a designated Title IX coordinator, that job had been shuffled between senior administrators who “lacked necessary training” and “already had a full profile of professional responsibilities.” Until August 2015, when Baylor adopted a new policy to deal with sexual discrimination, “there were no clear protocols for documentation or consistency” in dealing with complaints.

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This is painfully clear in the school’s handling of football player Tevin Elliott, who was sentenced to 20 years in prison for rape in 2014. Elliott was tried for crimes against one woman, two others testified that he had sexually assaulted them, and evidence was submitted from a fourth. Elliott appears to have assaulted even more women, and the school, chillingly, appears to have known it. In February, ESPN told the story of a female Baylor student, identified as “Kim,” who reported her rape in 2012, only to be informed by BU’s chief judicial officer, Bethany McCraw, that she was the sixth woman to make such a complaint against Elliott. 

“I’m like, ‘Oh my gosh, six?’ “ Kim said. “We essentially asked, ‘Well, why are there six?’ and, ‘Well, does the football team know about this? Does Art Briles know about this?’ And she said, ‘Yes, they know about it, but it turns into a he said-she said, so there’s got to be, actually a court decision in order to act on it in any sort of way.’ “ 

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McCraw appears to have been in total ignorance of the federal law that required the school to act on reports like Kim’s, whether or not it was adjudicated by the courts. It’s hard to fathom how a university, given strong evidence that one of its students is habitually raping and assaulting his peers, could decide that the best course of action was to leave him be, but this is what Baylor is accused of doing. (One of Elliott’s victims is now suing the university.) The courts eventually fulfilled their role—but if Baylor had listened to the first woman who spoke up, it may have been able to prevent a string of horrendous crimes.

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This is one key reason why schools must be involved in adjudicating sex crimes. It can take years for a criminal case to wind its way through the courts. Schools can move faster to investigate serious charges and remove perpetrators who pose a demonstrated harm to other students. The criminal justice system is also poorly equipped to handle cases of rape and sexual assault: Because so many rapes have no third-party witness, its often difficult to provide evidence “beyond a reasonable doubt.” An estimated three in every 100 rapes result in punishment through the criminal system, and many survivors of sexual violence decide they will face less trauma staying silent than seeking justice in court. Victims can receive a fairer hearing under the “preponderance of evidence” standard that schools employ—though it’s important to note, as legal experts have argued, that this lower evidentiary standard must be paired with careful investigation and legal representation in order to preserve the rights of both accuser and accused.

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One of the most important services schools can provide to victims isn’t dependent on a finding of guilt. The principle undergirding Title IX is that sex discrimination should not deprive anyone of educational opportunities. Schools can provide things that police and courts can’t, such as a mental health counselor or a new dormitory assignment across campus from an assailant.

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On these counts, too, Baylor appears to have failed its students. Pepper Hamilton found that the school’s administrators lacked necessary training in trauma and gender-based violence, and that investigations—when they took place at all—”were conducted in the context of a broader culture and belief by many administrators that sexual violence ‘doesn’t happen here.’ ” The report continues: “Administrators engaged in conduct that could be perceived as victim-blaming, focusing on the complainant’s choices and actions, rather than robustly investigating the allegations, including the actions of the respondent. … Perceived judgmental responses by administrators based on a complainant’s alcohol or other drug use or prior consensual sexual activity also discouraged reporting or continued participation in the process.”

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In addition to its report, Pepper Hamilton delivered a long list of recommendations, which Baylor’s Board of Regents has reportedly already adopted. Among other things, the school has agreed to “[i]dentify victims who are still at Baylor who made reports that did not move forward” and to “[c]reate a culture within the football program that ensures that the reporting, investigation, and disciplinary actions involving student-athletes and athletics department staff are managed in the same manner as all other students and staff on campus, and that student-athletes are held accountable to the same standards as all Baylor students.” Given the school’s history of disdaining both the testimonies of rape victims and the mandates of federal law, it’s unnerving to imagine everything that could still go wrong. Still, this new phase in the school’s handling of sexual assault cases should at least be better than what passed for justice in the do-nothing, say-nothing, win-lots-of-football-games era of Art Briles and Kenneth Starr.

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