McCaskill to release survey on college sexual assaults

The legislation will attempt to address a complex, layered problem that has turned into a national discussion on how often such assaults take place compared with how often they are reported, and how the offense is adjudicated by colleges and the police.

Last week, the Washington Post, after surveying college crime statistics, reported that there were 3,900 reports of forcible sex offenses on campuses around the country in 2012, a 50 percent increase from 2009. But the newspaper cautioned that the numbers include allegations of incidents that did not result in prosecutions or convictions.

McCaskill said her legislation could encompass a variety of approaches, including requiring mandatory training for people who conduct the first interviews of an alleged victim of sexual assault. It may also offer more flexibility in punishment of sexual assault perpetrators — and of schools that do a poor job handling assault allegations.

Sen. Dean Heller, R-Nev., who plans to join McCaskill on a bipartisan bill, would like to see more sexual assault data available to parents and prospective students. He is also calling for streamlining federal directives that overlap and confuse, Heller spokesman Chandler Smith said.

Advocates say one of the biggest barriers for victims of sexual assaults is immediately cooperating with a criminal investigation while still traumatized, partly because of stories about how past victims were sometimes treated.

In a report called “Not Alone,” a White House task force on sexual assault recommended that colleges enter into memorandums of understanding with local rape crisis centers and police. The White House also has ordered colleges to keep better statistics on stalking, domestic assault and other related issues.

But McCaskill said she had talked with many sexual assault survivors who had “little or no confidence in the criminal justice system” or administrative processes on campuses.

“These cases are hard cases (but) they are makeable ... if the victim has the right kind of interview, the right kind of evidence, and the right kind of investigation is done as close in time as possible to the event,” said McCaskill, a former sex crimes prosecutor. “The more time that passes the less likely there will be a successful criminal prosecution, because a lot of this is about corroborating the victim.”

The challenge, McCaskill said, is insuring that a complex system “makes sure that the victim gets as much information as possible as quickly as possible and fully understands” that a successful prosecution “has everything to do with her willingness to not only come forward, but come forward quickly.”

Some senators have raised concerns that any new federal action not be burdensome to campuses already required to adhere to many federal regulations.

“Whatever we do here, I think we need to make sure that we don’t suggest to anybody that we in Washington should be primarily responsible for making the campuses safe,” Sen. Lamar Alexander, R-Tenn, who served as education secretary under President George H.W. Bush, said at a Senate hearing on Thursday.

Catherine Lhamon, the Education Department’s assistant secretary for civil rights, told that Senate committee on Health, Education, Labor and Pensions that some universities were still dragging their feet in combating sexual assault.

McCaskill helped shepherd successful legislation earlier this year changing how the military handles sexual assault.

In January, when a story emerged that former University of Missouri swimmer Sasha Menu Courey had committed suicide after an alleged sexual assault, McCaskill spoke then of a personal stake, and of the legislative action that has followed.

“As a mother of a daughter in college, my heart breaks for this young woman and her family,” she said then. “We must create a safe space for all women to report sexual assault to law enforcement — and no matter who the alleged perpetrator is, there must be a thorough and professional investigation.”

McCaskill subsequently held three listening sessions with victims and their advocates; local and college law enforcement officials; and experts on how allegations of sexual assault can be handled under Title IX, which bans discrimination based on gender.

Several advocates stressed that the issue did not lend itself to one-size-fits all answers.

And new legal trends are emerging from it, according to a renowned law professor who has begun following the issue. John F. Banzhaf III, professor of public interest law at George Washington University Law School, says he has noticed more cases of young men producing video of sexual encounters to defend against sexual assault or rape, and more students suing their schools after being punished administratively for sexual assault.

“Very clearly what is happening is the colleges are being pressured to do more in this area,” he said. “There are various concerns now. You start with the basic one: whether colleges should be in this business. It is argued that is why we have prosecutors. Colleges are not equipped for this.”

McCaskill said universities and colleges that said they had no problem with the issue — sometimes under pressure from parents or alumni — were either “lying or denying or incompetent.”

Past “horrible stories about how victims have been treated,” McCaskill said, have been used “almost as a cudgel in some ways to keep victims from believing that there are people ... that will listen and investigate and handle the cases in a very professional and supportive manner.”

Her final round table talk, made up of campus and local law enforcement officials and victim advocates, produced several reasons that legislating on the issue may be difficult:

• Law enforcement’s first impulse to is to gather as many facts and do as many interviews as possible, but often the first people who hear about an alleged incident are friends or dorm mates — people who are not trained to conduct good forensic interviews. Many victims do not come forward immediately, and many do so reluctantly.

It may take “several days, several months for somebody to decide to come see an advocate,” said Darcy Folsom, director of Sexual Violence Prevention & Advocacy at Connecticut College. “At that point, even if they turn around and say the next day they want to file a criminal report, then that time has passed.”

• The initial advice given to victims who come forward is vital and should be designed to empower victims, advocates say, but it must be balanced with clear explanation of the challenges ahead. And it might differ from college to college because of variations in everything from university relations with police, to the state-by-state differences in laws on sexual assault.

“You have to balance between giving full and informed consent, giving enough information about the options that she can make, and informed choice about the options,” said Nancy Chi Cantalup, a research fellow at the Victims Rights Law Center and adjunct professor at the Georgetown University Law Center.

“Unfortunately, not everyone has a criminal justice system that is structured to give multiple options and to hold onto evidence for years so there can be a prosecution later if the survivor is ready for it,” she said. “You need to give them an honest idea of what they can expect from the various processes, whether it be internal or external.”

She added: “I am going to be very clear with anyone I talk to that if your goal is to not have to see him in the cafeteria, you are going to be better off going through the university’s Title IX system. If your goal is to have him incarcerated, then we need to talk to the police.”

• The desire for confidentiality — key for many victims, according to advocates — often runs into open-records laws and the way students communicate. Social media have accelerated the proliferation of rumor and disinformation, which law enforcement officials say can hamper investigations and discourage victims from coming forward.

“It is unfortunate, and it is also very impactful on victims, it is very impactful on the investigations,” Cornell University Chief of Police Kathy Zoner said. “People are presuming things have happened, they tell stories, (and) once the comment is out there it is un-retractable. These are battles that we all face.”

“99 percent of which is not admissible in court,” McCaskill said.

Zoner agreed, but added that it “does impact the ability to move forward” after a victim is on social networks.

Keeping records of sexual assault confidential on campus “is going to be a challenge in some states,” said Paul Denton, chief of Ohio State University Police. But he also said that law enforcement could use social media — especially video found there — to help build a case.

Banzhaf, the George Washington law professor, said that video was also likely to be used in defense of sexual assault cases and that he had noticed an uptick in the use of video in sexual assault defense.

Banzhaf predicted that more college students would shoot video of sexual encounters as protection against prosecution. He said shooting such video, sans audio, was legal in most states if done for legal defense.

Banzhaf said the rise in students’ suing their schools after facing sexual assault discipline or criminal proceedings pointed out how universities “are damned if we do, and damned if we don’t” on the push to get tougher on the sexual assault.

Colleges and universities are “pretty good at making academic decisions,” Banzhaf said, but not as equipped for “judging exactly what went on in a darkened dorm room two weeks ago.”