The University fails student survivors of sexual assault. The U.Va. Office of the Dean of Students and Women’s Center — our go-to contact points for survivors — systematically perpetuate this failure as a matter of policy.
On Oct. 31, 2012, the University issued a statement on a lawyer’s critical Facebook response to the recent U.Va. review of its student sexual misconduct policies. The Women’s Center published this statement on its website. This statement reiterated the University-wide practice of erroneously informing survivors that they have two reporting options: criminal and University complaints.
This practice omits a third option: civil complaints. Civil complaints are almost always a survivor’s best bet.
Civil complaints have the lowest burden of proof for survivors. The standard of proof in civil cases is a preponderance of evidence, or about 51 percent. The standard of proof in criminal cases is beyond a reasonable doubt – about 99 percent.
Under pressure from the Department of Education, the University recently formally changed its policy on internal complaint investigations to apply the appropriate, civil standard of proof. Anecdotal reports suggest implementation of this change may remain imperfect. The generous inference in the absence of published data is that the effective standard of proof and success rate in University complaints is unknown. Civil courts have a relatively better-proven track record of applying the appropriate standard.
Civil, criminal and university complaints also have different possible outcomes. Civil remedies include payment for expenses incurred, such as medical treatment and lost wages. Civil complaints thus have the potential to remedy damage from victimization.
Conversely, criminal remedies treat the state and society as the victim, and the actual victim as a witness to the crime. Criminal complaints thus deny survivors agency in suggesting possible remedies.
Instead, the victim-witness can be criminalized for imperfect cooperation with the state’s desires. For instance, from California to Ireland, women have been imprisoned this year for refusing to testify before their alleged rapists in court. Never mind that confronting someone who has violently attacked you might reasonably cause mortal terror.
The optimal outcome of a criminal rape complaint is imprisonment of a convicted rapist. In other words, if the state successfully prosecutes its case, the rapist will be placed in a cage where he will have a double-digit probability of being sexually assaulted.
Conversely, the ideal outcome of a civil rape complaint is whatever the survivor and his or her counsel decide it should be. This might be an apology. It might be an award of monetary damages. There is nothing unethical about deciding a rapist should pay with his pocketbook and not his body.
The vastly different possible outcomes of criminal and civil complaints have vastly different probabilities. The U.S. arrest rate for rape is 24%. Conviction and prison sentencing rates for sex assault are single digit. Again, the standard of proof in criminal cases is roughly twice as high for plaintiffs as in civil cases.
This low probability of arrest and conviction is good for criminal defendants. The standard of proof for the state to be able to take your liberty should be high. But this high standard means that rape victims are significantly more likely to see the inside of a police interrogation room — while making a complaint — than are their attackers after an arrest. This makes the modal criminal rape reporting experience an inversion of the moral universe.
University complaints cannot land rape victims in jail. But nor do they carry the potential of reimbursement for expenses incurred as a result of assault. Instead they carry mainly potential reputational costs for both complainant and accused.
These possible costs might be more terrifying than any possible benefit from a University complaint for some survivors. Shame, guilt, and self-blame are common psychological responses to sexual assault. Airing sordid details of these traumatic experiences, explicitly for other University community members to judge what party bears what degree of guilt, may thus run directly counter to many survivors’ best interests.
And so it matters that the University fails to inform survivors of all their options. Survivors have a human right to exercise the agency that assault violates, by making informed choices about their responses. University policies deny that right.
This denial harms survivors’ well-being. Submitting criminal complaints that do not result in arrest or conviction can cause survivors to feel invalidated, disbelieved, and even less safe. It’s hard to believe the police will protect you, if they don’t appear to believe that you have been harmed in the first place. Thus some scholarship calls survivors’ experiences of reporting rape to police a “second assault.”
University policy goes beyond passively discouraging civil reporting of sex assault. Student Legal Services denies assistance to students who are involved in disputes with other students. This denies survivors, particularly low-income survivors, who are assaulted by other University students access to legal counsel.
In sum, the University’s response to rape fails survivors by denying them legal assistance and vital information about their own response options. These failures are a matter of policy. Current policies serve institutional rather than student interests.
Survivors deserve an institutional response to rape and other forms of sexual misconduct that honors their abilities to make informed decisions. The University has an unfulfilled ethical obligation to enable students to see and choose among the possible outcomes of all reporting avenues — regardless of their familial or financial resources.
Katelyn Sack is a Ph.D. student in Politics and CLAS ‘05 alumna. She worked at the U.Va. Women’s Center from 2002-2004. The opinions expressed in this article are her own.
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