Policy Reccommendation for how to address Sexual Assault.
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Trigger Warning: While there are no sexually explicit stories or stories of abuse or assault there are statistics and information on the way sexual assault is currently addressed in the U.S.
I n the United States 1 in 4 women will be sexually assaulted in their lifetime. Out of those statistics 1 in 3 women get sexually assaulted on college campuses. 1 in 6 human beings will be victims of attempted or completed rape. Even more astounding is the fact that out of every 1000 rapes 994 rapists walk free, and those cases that do go to trial seldom get actual jail time. This allows an understanding of the gravity of the systemic and systematic inadequacies of our judicial and legislative systems in addressing the current epidemic of sexual assault across the country. While other humans of different gender(s) do experience sexual assault the overwhelming majority of survivors of sexual assault are women or humans who identify as feminine or female. As a result, of the ration of assaults to convictions this paper proposes a complete overhaul of how this crime is dealt with. The overhaul has to occur on multiple levels. First, the judicial system/legislative system needs to redefine the gravity of the crime and the crime itself. Second, Universities, Colleges, and all educational institutions should be federally mandated to expel any student accused of conduct related to sexual assault with an exception only extended to the victim of such a crime. Further, they should by law be considered mandated reporters and as such must report any cases that are reported to them to the proper authorities. Third, all cases must be handled in a new way. Currently, most if not all cases are tried in front of male judges who are not necessarily trained to understand the effects of such a despicable act on the survivor of the act. As such the redefinition of law ought to expose new avenues for these cases to be tried with a higher conviction rate so we can deter these crimes entirely.
The first phase of the overhaul calls for a redefinition of the crime and the gravity or weight it carries legally. According to the Department of Justice, Sexual Assault is defined as “any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.” However, many lawmakers expose that the trouble isn’t federal recognition of the crime but rather the varied state definitions of the crime and the way in which they are brought forth through the criminal justice system. In a through search on Black Law’s Dictionary 2nd Edition I found that not a single definition of Sexual Assault exists in any detailed manner. However, the definition provided for assault is as follows, “An unlawful attempt or offer. on the part of one man, with force or violence, to inflict a bodily hurt upon another. An attempt or offer to beat another, without touching him; as if one lifts up his cane or his fist in a threatening manner at another ; or strikes at him, but misses him.” (3 Bl. Comm. 120; 3 Steph. Comm. 469.) Overall, the lack of definitional consistency proves to be a challenge for those who hear cases on sexual assault or crimes relate to sexual misconduct. As a result, I want to propose a new definition for sexual assault or at least suggest one for the Office for Violence Against Women, part of the Justice Department, to consider as they continue the fight against this heinous crime.
In each state the definition of sexual assault vary from sexual assault, rape, forcible rape to a various of different terms. However, it is almost an oxymoron to have separate definitions for a crime that is consistent with unwanted sexual contact regardless of contact. The definition I propose for sexual assault is one that is equated with the legal definition of Manslaughter. According to Cornell University School of Law, Manslaughter is defined as “the act of killing another human being in a way that is less culpable than murder.” However, it could also extend to the common law definition of Murder. Cornell University asserts, “murder [is] defined as killing another human being with malice aforethought.” However, they go on to explain there are four types of common law murder: 1) Intent-to-kill; 2)Grievous -bodily-harm-murder; 3) Felony Murder; 4) Depraved Heart Murder. The definition of Murder that fits alongside Manslaughter is the second type, Grievous-Bodily-Harm-Murder. However, I would extend this to the various other methods of defining murder. The Pennsylvania Statute asserts that the only crimes that were considered felony murder are that of: arson, rape, robbery and burglary. (Cornell Law) However, the definition with the most potential to enable the trying of sexual assault cases is that of second degree murder. According to Cornell Law School, Second Degree Murder requires that the person in question exhibit an extreme disregard for human life. This would follow the level of disregard exhibited by perpetrators of sexual assault and sexual violence. To illustrate the Rape, Abuse & Incest National Network, reports the following alarming statistics in regards to the long term effects of sexual assault/rape:
● 94% of women who are raped experience post-traumatic stress disorder
● (PTSD) symptoms during the two weeks following the rape
● 30% of women report PTSD symptoms 9 months after the rape
● 33% of women who are raped contemplate suicide
● 13% of women who are raped attempt suicide
● Approximately 70% of rape or sexual assault victims experience moderate to severe distress, a larger percentage than for any other violent crime
● 38% of victims of sexual violence experience work or school problems, which can include significant problems with a boss, coworker, or peer.
● 37% experience family/friend problems, including getting into arguments more frequently than before, not feeling able to trust their family/friends, or not feeling as close to them as before the crime.
● 84% of survivors were victimized by an intimate partner experience professional or emotional issues, including moderate to severe stress, or increased problems at work or school.
● 79% of survivors who were victimized by a family member, close friend, or acquaintance experience professional or emotional issues, including moderate to severe distress, or increased problem at work or school.
● 67% of survivors who were victimized by a stranger experience moderate to severe distress
These statistics are only cited to show the immense long term damage of sexual assault. As a result of the overwhelming statistics on the impact to the victim/survivor I argue it can be deemed that the person who perpetrates that crime ought to be tried under the guise of Murder in the Second Degree for their extreme disregard for human life. Further, the sentence should care a minimum of 15 to 30 years of sentencing. Currently, numerous cases in the U.S. have been handed down sentences of community service or probation by judges who believe the perpetrators made an honest mistake. However, whether intent is there or not the complete disregard of the consequences and impacts to the victim further show how the government re-violates these innocent women and others by forcing them watch the perpetrators of this heinous act not be dealt with swiftly and with contempt. While the moral code of our society lacks ethical concerns about letting male judges or poorly suited individual without specific training on sexual assault handle these cases redefining the crime could provide them proper limitations to their leniency.
Phase 2: Mandated Reporting
According to 42 U.S. Code § 13031, a mandated report is,
A person who, while engaged in a professional capacity or activity described in subsection (b) on Federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse, shall as soon as possible make a report of the suspected abuse to the agency designated under subsection d.
I argue this should be extended past childhood to any case where a student above the age of 18 discloses to any agent who would be previously seen as a Mandated Reporter. The possible rebuttal to this is that of paternalism. Institutions could argue that this removes free-will and imposes upon them sanctions for not abiding by mandated reporting. However, it is not paternalistic because students who disclose want the institution to protect them but seeing as the university, college, etc. are not legally able to provide legal sanctions or protections for survivors it is important for the federal government to stipulate that all universities must report violence of a sexual nature to the proper authorities. Institutions of higher learning are not equipped to deal with sexual assault or sexual misconduct in any way. For example, in a theoretical world the rape kit would be conducted and submitted for examination by a medical lab approved by the government. After that analysis the statement of the victim would have to be corroborated by investigators in order to determine the perpetrator of the crime once corroborated the investigators press charges and arrest the individual who is subsequently held in jail awaiting trial unless they make bail. Further, they are then tried, and in a perfect world, convicted for this heinous crime. As a result of the many layers required in properly addressing the case justice would never be served if the institution is allowed to deal with the crime in-house. More importantly the systems in place at the institutional level simply do not protect the victim. For example, when a victim reports a case to an authority figure the student sits in front of a randomly selected board that weighs the decision of justice for the victim and sanctions for the perpetrator(s).
Furthermore, the sanctions imposed are less harsh than sanctions for plagiarism which carry the weight of expulsion. Even worse are the types of sanctions imposed on perpetrators usually mean suspension or academic conduct probation none of which are remotely protecting the victim from having to be in the same space with someone who harmed them. Institutions are also not protecting the student body by allowing the individual to stay a member of their community. The caliber of people on campus changes the safety and academic climate for all students. Thus, the only option is automatic reporting and expulsion. This would led to significantly less number of survivors feeling as if dropping out or suicide are their only options.
However, many institutions suggest they are equipped to deal with these concerns as a result of having Title IX coordinators to facilitate the process. Regardless of this claim the basis of it is inherently inadequate in addressing sexual assault claims in any meaningful sense. Title IX holds “No person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” (U.S. Department of Education) This argues that Title IX coordinators would be equipped for sexual harassment however, sexual harassment is not sexual assault. While it may be a component of it, it is not the same thing. Thus, regardless of any Title IX coordinators, or training they are still substantially not equipped to address sexual assault.
Moreover, the university, college, educational institution private or public may not keep any of the cases to be dealt with “in-house” if the institution fails to follow the mandate the suggested repercussions is a find of $250,000 per case. Currently, 1 in 3 sexual assault occur on college campuses and 53% of survivors are of college age. (RAINN) As such, it is imperative for institutions to start actually dealing with the growing epidemic rather than waiting for those in their community to either be silenced, or withdraw due to the immense emotional distress experienced by those individuals.
Further, along with Mandated Reporting the school must automatically expel any student accused of or suspected of sexual assault and sexual misconduct. While this seems strict it prevents or aids those staggering numbers of statistics where survivors are impacted with great emotional distress in educational, work, and social environment. This is a result of students not having to be in the presence of anyone who has harmed them in such an invasive manner ever again.
Phase 3: Case Management
The current way in which cases are dealt with in the U.S. quite honestly leads us to believe that the way we deal with them are not at all. Out of every 1000 rapes 994 rapists walk free. This means 99.4% percent of cases never see justice served. This not only shows the ineffectiveness of current legal avenues in trial and conviction of these crimes but shows the underlying reason why sexual assault is one of the most underreported crimes in the United States. Further, this leads to an overwhelming distrust in the system thus how these crimes are currently managed has to change. For starters, the majority of judges in the United States are male and as such do not necessarily have the biological understanding of the crime. This is not to say male judges ought not try the cases but rather more judgeships should be granted to women and in conjunction with that all judges including women ought to go through mandatory training that focuses on sexual assault and sexual misconduct.
Figure 1: American Constitution Society, 2010
To illustrate the gender gap in the judicial system the American Constitution Society developed a graph to depict the disparity over time. (See Figure 1) The disparity as shown in Figure 1 exposes that in 2009 the number of female justice barely reached 500 while male judges held over 1500 spots. Moreover, the National Women’s Law Center asserts that only 33 % of active judges in the U.S. are women. They explain, “There are still 6 district courts around the country where there has never been a female judge.” (NWLC) The NWLC explains,
“The increased presence of women on the bench improves the quality of justice: women judges can bring an understanding of the impact of the law on the lives of women and girls to the bench, and enrich courts’ understanding of how best to realize the intended purpose and effect of the law that the courts are charged with applying.”
The NWLC properly illustrates the concerns I share about having males try cases that affect women without any kind of specific training. Further, NWLC explains that the number of women of color is even smaller. Considering women of color are exponentially more likely to be assaulted, with Native American women being most likely to be assaulted above any other race the number of judges of color is relevant to this claim. According to the NWLC,
“there are 83 women of color serving as active federal judges across the country (only 10.5%) including 43 African-American women, 26 Hispanic women, 11 Asian-American women, one Native American woman, one woman of Hispanic and Asian descent, and one woman of Hispanic and African-American descent.”
These numbers are further proof that in lieu of diversity we need to train the judges who do get granted judgeships to properly deal with sexual assault cases. The overseeing committee or office ought to be the Office for Violence Against Women which is a division of the Department of Justice.
While the gender gap still needs to be addressed we can work with judges currently in place by developing a task force that creates curriculum to properly train judges for a minimum of 72 hours of training. While a law degree and experience enable you to understand law the current practice is to let people get away with the crime based on not wanting to ruin the perpetrators life. However, that is not only unfair but also not legally amenable. According to the statutes on sexual assault the sentencing ranges from 3–15 years. However, this enormous gap not only leads judges to believe leniency is encouraged but also allows them the discretion of deciding harm done to the victim and weigh its effect on the perpetrator. As such specific training that outlines the way this affects women and girls in the United States would afford women a better chance at justice.
However, in considering the training approach a task force must be comprised of survivors, organizations such as Rape Victim Advocates, RAINN, and others that have specialized knowledge both academic and experiential that could only enhance the way our justice system looks at cases of sexual assault. Moreover, the training process would afford women a more understanding judicial process. Currently, survivors are put on trial for all their sexual behavior when simply trying to convict a rapist. Having trained judges would allow them to deem arguments of promiscuity, victim-blaming, “she was asking for it”, to go out the window as non-relevant points to any case of sexual assault leading more women to feel they can trust the criminal justice system to work to achieve justice for their cases.
While I do not suggest that by any means this is the only route to successfully address the epidemic I do know that it is one that might honestly work if it were to be implemented. Moreover, its implementation is key. The Department of Justice currently doesnt do nearly enough to address the domestic issues that affect women in the U.S. As such some serious reform of their policy and priorities ought to occur. As for concerns for funding the Department of Justice has one of the largest discretionary funds and spends trillions of dollars of the U.S. budget thus, it can afford to allocate funds for the goal of stopping this heinous crime. Further, funding would only truly be necessary on a state level for states to implement judge training, and lawyer training to address such cases. These trainings would virtually pay for themselves by having judges and lawyers pay a fee for the training as part of their judgeship. This fee would continue upon renewal of the certification for training on sexual assault. Thus, this could potentially be a cite of profit rather than expenditure which would be appealing to the right wing hegemonic structures that all but celebrate the sexual assault of women. Furthermore, with the aforementioned steps of redefinition, mandated reporting, and case management we can change stop another human being from being raped every 98 seconds.