President Obama recently established a task force to protect students from sexual assault. According to a White House Memorandum of January 22, 2014, one in five female students is a survivor of attempted or actual sexual assault that occurred while in college. The unfortunate and heartbreaking situation with University of Missouri swimmer, Sasha Menu Courey, has recently placed the issue of on- and off-campus sexual assault in the spot light. In 2010, Ms. Courey was allegedly raped by one or more members of the University’s football team. Suffering from severe mental illness, quite possibly exacerbated by the rape, Ms. Courey committed suicide in 2011.
Under Title IX of the Education Amendments of 1972, institutions of higher education that receive financial aid are required to provide their students with (1) information aimed at preventing sexual assault and rape, and (2) adequate procedures for reporting sexual assaults. Further, these institutions must have sufficient grievance processes in place for the investigation, resolution, and prevention of such cases. To the extent an institution does not have such procedures in place, it may be subject to being denied financial aid and other funding. In certain circumstances, the institution may also be subject to civil liability.
As illustrated in the decision of Davis v. Monroe Cnty. Bd. of Educ., a private action may lie where the institution acted with deliberate indifference and the harassment is so severe that it effectively bars the victims’ access to an education opportunity or benefit. If an institution either fails to act, or acts in a way which could not have reasonably been expected to remedy the violation, the institution may be liable for what amounts to an official decision not to end discrimination.
What types of procedures should an institution implement to avoid loss of funding and/or potential civil liability? A good example is a section of the University of Missouri’s Rules and Regulations on Standards of Conduct, which provides:
A student enrolling in the University assumes an obligation to behave in a manner compatible with the University's function as an educational institution and voluntarily enters into a community of high achieving scholars. Consequently, students assume new privileges along with new responsibilities in accordance with the University’s mission and expectations.
Conduct which is subject to discipline includes:
- Nonconsensual sexual behavior including but not limited to rape
- sexual assault
- nonconsensual sexual touching of the genitals, breast or anus of another person or the touching of another with one’s own genitals whether directly or through the clothing
- or exposing one’s genitals to another under circumstances in which he or she should reasonably know that his or her conduct is likely to cause affront or alarm, or sexual harassment.
Additionally, the University of Missouri has a procedure on rape and assault that encourages a victim of an attack to contact the police and seek medical attention immediately. The University offers its support through the University’s MU Counseling Center, MU Women’s Center, Student Health Center, and Relationship and Sexual Violence Prevention Center (“RSVP Center”). Finally, the University’s Police Department offers a Rape Aggression Defense Training to its students. There is currently no lawsuit pending against the University of Missouri arising from the death of Sasha Courey. Her parents have opted to open a foundation in honor of their daughter, seeking to bring awareness to borderline personality disorder, the mental illness Ms. Courey was suffering from at the time of her suicide.
Nonetheless, the University of Missouri and colleges across the nation are being challenged regarding whether they are doing enough to prevent sexual assault and rape on- and off-campus. The Department of Education is currently investigating 35 cases against institutions of higher education arising out of their handling of student sexual assault and rape matters.
With disciplinary procedures and response protocols in place, what else can a university do to combat sexual assault and rape? The first response by the university should be to provide treatment and support to the victim to assist with the trauma of the event. Of equal importance, sexual assault and rape are chargeable, criminal offenses in every state in the union. Therefore, sexual assaults and rapes on- or off-campus should be handled through the appropriate criminal investigation by the local and campus police.
It is not enough for universities to take action after sexual assault and rape occur; it is imperative that schools also engage in preventative measures. Would-be assailants must be put on notice of the serious consequences for such acts because only once justice is served can the healing process begin. Further, colleges and universities without self-defense and Rape Aggression Defense (RAD) programs in place should begin by providing these programs. Many schools offer them free-of-charge to female students, while others charge a nominal fee. These programs provide women with awareness, prevention, and risk reduction and avoidance techniques, as well as hands-on self-defense training.
The alleged rape of Sasha Menu Courey, like many sexual assaults, was never reported—sadly, not uncommon for many of these crimes. Even though a university’s hands are tied without sufficient reporting, there is nothing stopping every university in this nation from bringing this urgent issue to the forefront of its school’s policies, communicating to all of its students that “no means no” by implementing a zero-tolerance policy on sexual assaults. Such communication should be ubiquitous and mandatory. There is too much at stake for the institution, and especially the victims, to remain silent.
—Craig Robson is an attorney in the Orange County office of Michelman & Robinson, LLP. He represents institutions of higher learning. He can be reached at firstname.lastname@example.org.