One of the best ways to understand a complex and often-confused issue, such as campus sexual assault, is to go to the actuarial risk management experts who typically look at these social problems with the calm objectivity of a scientist.
United Educators (UE) provides liability insurance and risk management services to nearly 1,300 members representing thousands of schools, colleges, and universities throughout the United States. Founded in 1987 as a risk retention group, UE is owned and governed by the educational institutions it insures.
Through its EduRisk division, it also does research and provides risk assessment advice to its member-owners.
UE performed two studies of claims of campus sexual assault, for the period of 2006-2010 and for the period of 2011-2013.
Their first research into sexual assault claims was for the five-year period of 2006-2010. This was a time, following the infamous Duke lacrosse team stripper rape hoax, in which campus sexual harassment had become a core issue for Title IX enforcement (the 1972 equal opportunity amendment to the 1965 Higher Education Act), but before campus sexual assault had reached today’s fever pitch of activist, media and political attention.
Nota bene: this does not claim to be a study of campus sexual assault, but only of those cases which result in lawsuits, which may or may not be representative of the entirety of such allegations (though it did comprise 3/4 of all student complaints).
Student Sexual Assault: Weathering the Perfect Storm: The UE Report
Incidents of student-on-student sexual assault are a “perfect storm”, a confluence of some of the most difficult student risk management issues – alcohol, mental health, and sexual violence. The safety and liability risks posed by student sexual assault are significant and made more challenging because the underlying circumstances are often unclear. Most situations involve acquaintances, no witnesses, and an unclear memory of events due to alcohol abuse.
From 2006-2010, United Educators (UE) received 262 claims of student-perpetrated sexual assault, which generated more than $36 million in losses. The claims data show that students accused of perpetrating a sexual assault are just as likely to sue the institution as accusing students. As colleges review their student sexual assault practices, institutions should strive to provide a fair and impartial response to both parties until the matter is resolved. From a safety, liability, and reputational perspective, institutions need to establish practices that assure a fair and impartial response to both parties.
Three-quarters of the student sexual assault claims resulted in litigation. Claimants argued that educational institutions:
- Did not follow their policies and procedures
- Had confusing or unclear policies and procedures
- Did not respond promptly or reasonably to an assault report
- Treated the victim or the perpetrator cruelly or unfairly
Common Factors in the Claims
In 92% of the claims with losses, the accuser was under the influence of alcohol, and more than 60% of accusers were so intoxicated that they had no clear memory of the assault. In addition, 63% of the accusers were first-year students. Prior to the assault, 33% of the accusers battled mental health issues such as eating disorders, personality disorders, suicide attempts, or trauma from a previous sexual assault [see the case of The Stanford “Model” Student and her Silicon Valley Mentor]. Although athletes are about 10%-15% of an institution’s student population, they comprised 25% of the study’s alleged perpetrators.
In UE’s five-year study, 96% of the student-on-student sexual assault claims involved acquaintances. Students accused of assault brought 54% of the claims and comprised 72% of the financial losses
In about 25% of UE’s claims, the institution terminated its investigation after the alleged perpetrator withdrew from the college.
In 25% of claims studied, accusers and accused students felt their admission of guilt for other behavior [such as alcohol or drug use] affected the outcome of their sex assault case.
Complaints about the lack of advance notice of the hearing, evidence, and charges were made in 60% of claims initiated by the accused.
In January 2015, United Educators released an analysis of all the sexual assault reports at its client colleges for the three years from 2011 to 2013 (excluding ones that involved faculty). This was a time period following the 2011 “Dear Colleague letter” from the DOE Office of Civil Rights (OCR) to all US colleges and universities, setting out new policies for dealing with accusations of sexual assault – and when campus rape became a national issue, both for campus activists and for the White House.
The final data set was 305 cases from 104 colleges and universities (or 102 per year, up from 52 claims per year in the previous five years).
Here are some of UE’s findings:
Athletes are more likely to gang rape. College athletes aren’t accused more often of rape – they represent about 15% of both student population and accused perpetrators, but they made up 40% of multiple-perpetrator attacks reported to schools (in other words, athletes were almost three times as likely to be involved in gang assault). In all, 10% of the sexual assault reports UE examined involved more than one perpetrator, but this could be an over-representation of their actual proportion on campus, as alleged victims may be more inclined to report these kinds of attacks.
Fraternity members are more likely to serial offend. Like athletes, fraternity members weren’t more likely to be accused of sexual assault. Fraternity members made up 10% of accused perpetrators in the study, approximately the same percentage of college men who go Greek, but they made up 24% of repeat perpetrators. (Athletes made up another 20%.) All in all, 1 in 5 alleged assailants in the study were repeat offenders.
Drinking increases a man’s likelihood of being accused of rape. In 11% of “physical force” assaults and for 7% of “failed consent” cases, where the man is accused of inferring consent from silence or lack of resistance, the perpetrator was drinking and the victim was not.
It’s not a campus assault problem; it’s an underclassman assault problem. More than half of alleged victims in these reports were freshmen; adding in sophomores brings the total close to three quarters. And of reported gang assaults, freshmen accounted for 88% of the alleged victims.
Many didn’t call it rape. Every study has found that college women often don’t label what happened to them as rape. In the UE report, 40% of alleged victims delayed reporting to their schools an average of 11.3 months; most of these students only labeled their experience sexual assault after talking to friends or attending a training session.
Colleges clear the perpetrators in 36% of decisions. Even with the low “preponderance of the evidence” standard in their adjudications, or “more likely than not”, more than one-third of alleged victims don’t persuade their college’s disciplinary board that the evidence supported their allegation.
Of students found responsible, 43% are expelled. Of men found responsible for sexual assault, 82% were suspended or expelled, 18% were allowed to continue their studies uninterrupted and 57% were allowed to graduate. [This contradicts the oft-repeated complaint that the men found responsible rarely suffer serious punishment.]
Alleged perpetrators file more lawsuits than alleged victims. Of the cases analyzed by UE, alleged perpetrators filed 50% more lawsuits than alleged victims. [This corroborates the oft-reported bias of campus tribunals toward the accuser.]
Alleged victims are more of an insurance liability. Litigation brought by alleged victims accounted for 84%, or $14.3 million, of the total payouts in this study.
“Women have leveraged very low cost ways to get administrators to pay attention,” according to Brett Sokolow, the CEO of the National Center for Higher Education Risk Management, who’s been helping colleges grapple with campus assault for 15-plus years. “It’s very clever. And it’s very costly.”
The Circumstance of Campus Sexual Assault:
60% of alleged sexual assaults occurred on campus.
41% of alleged sexual assaults involved off-campus parties.
90% of alleged victims knew the perpetrator.
78% of alleged sexual assaults involved alcohol.
1 in 3 alleged victims were drunk, passed our or asleep (which means that 45% involved alcohol without incapacitation).
94% of alleged victims were female.
Nearly 75% of alleged victims were freshmen.
40% of alleged victims delayed reporting (average delay: 11.3 months).
84% of alleged perpetrators were students.
20% of alleged perpetrators were repeat offenders.
99% of alleged perpetrators were male.
Proposed Risk Management Strategies – 2006-2010 Study
The following strategies focus on promoting fair and impartial behavior by colleges in responding to complaints of sexual assault, administering the disciplinary process, and communicating with others about student sexual assault.
- Promptly investigate sexual assault complaints and follow through to completion. Do not delay excessively to wait for a parallel criminal investigation. Do not terminate the process if the accuser backs out; under Title IX, the obligation to protect the greater campus community supersedes an accuser’s wishes, including a desire for anonymity. Do not terminate the process if the accused drops out. And do not allow an informal resolution without a full investigation.
- Clearly understand how local police, campus security, and student discipline will coordinate response to sexual assaults. Have an MOU with the local police.
- Document the institution’s initial meeting with the victim. Emotional trauma clouds memory.
- Refrain from concluding whether an assault occurred in an investigator’s report. That’s the function of the subsequent hearing process.
- Provide the accuser and the accused each with an institutional liaison to navigate the disciplinary process. [Most college policies provide an adviser only to the accuser.]
- Carefully consider the role of lawyers in disciplinary hearings. Due to the quasi-judicial nature of these hearings and the high stakes of their decisions, bans on lawyers upset the parties – particularly the accused.
- Pay attention to how evidence is collected and permitted at hearings. In nearly half the claims, one party perceived that he or she was not allowed to present evidence that told his or her full side of the story or that the other party’s evidence was treated differently. Provide equal access to each party’s evidence. Do not unreasonably restrict evidence. To ensure investigators and hearing officers remain fair and impartial, institutions should provide training, preferably from trainers who are not advocates.
- Separate other punishable behavior of the perpetrator or the victim, such as alcohol or drug consumption, from the alleged sexual assault. Give immunity to both the accused and the accuser for drug and alcohol violations occurring in connection with an assault, and hold a separate hearing for related non-assault infractions of the student discipline code. [Most college polices grant immunity only to the accuser.]
- Provide both parties with adequate time and information to prepare for a hearing. Complaints about the lack of advance notice of the hearing, evidence, and charges were made in 60% of claims initiated by the accused. In some cases, the institution gave as little as 12 hours’ notice of an impending hearing.
- Consider the role of parents when addressing student sexual assault, so they are in the loop at every stage.
- Train students on the connection between alcohol and student sexual assault.
- Use a multidisciplinary team model to improve response to, and prevention of, student sexual assaults.
- Develop a public relations strategy for student sexual assault.
What Does This Tell Us About Campus Sexual Assault and Fair Procedure?
The issue of campus sexual assault arises within a “perfect storm” of youth and hormones, alcohol, drugs and risky or experimental behavior, a hook-up culture as a substitute for dating, pre-existing mental health issues and/or previous trauma, and a climate that has been strongly influenced by a rather radical feminist notion that Patriarchy = Rape Culture.
In 92% of the claims with losses, the accuser was under the influence of alcohol, and more than 60% of accusers were so intoxicated that they had no clear memory of the assault. Prior to the assault, 33% of the accusers battled mental health issues such as eating disorders, personality disorders, suicide attempts, or trauma from a previous sexual assault.
The current campus climate is also based on a radically dismissive notion that women are victims who require unquestioning support and an equally demonizing notion that men are villains who need constant restraint.
The reality is that 90%-95% of alleged perpetrators are known to the accuser, and the common image of a stranger lurking in a dark alley almost never happens on campus.
We know that athletes and fraternity members are either more likely to gang rape or be serial rapists, or are simply more likely to be targeted and charged with such crimes. In at least one prominent case, that of the mattress-carrying Columbia student Emma Sulkowicz, her belated claim of rape coincided with two other Columbia students accusing the same man (all three charges were dismissed after hearings). There was clear evidence of collusion between the accusers, so this may play a role in other such accusations of gang or serial rape (which is not to suggest that such things don’t occasionally occur).
We also know that may of these accusations come quite belatedly (in UE’s recent report, 40% of the complainants delayed an average of almost a year), and that the late claim typically comes after the woman has been convinced by victim advocates or others that what she initially did not consider a significant event was, in fact, a rape or sexual assault. In other studies, up to 2/3 of women don’t consider that the events that happened to them rise to the level of rape, and 80% don’t bother reporting the incidents to the police.
And we know that annual allegations of campus rape that result in lawsuits doubled in the last three years of media, activist and political focus over the previous five years. This is at a time when, according to the 2014 DOJ study, “Rape and Sexual Assault among College-age Females, 1995-2013”, campus rape and sexual assault was 20% lower on campus than for similarly-aged non-student women, and had declined by 50% since the late 1990s – making the claim of an “epidemic” of college sexual assault more than a little disingenuous.
We also know that recent research – such as the 2011 CDC National Intimate Partner and Sexual Violence Survey and “The Sexual Victimization of Men in America: New Data Challenge Old Assumptions” by Lara Stemple JD & Ilan Meyer PhD, American Journal of Public Health 2014 – indicate that men are raped at nearly identical rates as women. Yet in the latest UE study 99% of the alleged perpetrators were male.
While the refrain that most rapes of women go unreported is undoubtedly true (though in large part because most women don’t consider what happened to be a crime), the most under-reported sexual assault happens to men (the 2011 CDC study found that, of all the men who had been “made to penetrate” another, 86% of the perpetrators were women, and that a slightly higher percentage of men reported being made to penetrate than women reported penetrative rape).
So, yes, there is a problem of sexual assault and rape on campus. But it is NOT a manifestation of Patriarchy so much as a wildly inflated narrative propagated by activists who either are, or were heavily influenced by, radical and typically misandrist feminism.
Rape happens, and it should be treated seriously, just as any other felony crime (some proposed legislation at both the state and federal levels would require mandatory reporting to police or prosecutors – and victim advocates strongly oppose this). But crying “rape” as often as it now happens on America’s college campuses only trivializes rape, marginalizes authentic victims and demonizes too many men. The current Title IX policies, imposed on colleges and universities without the required notice and public input, do not provide for the kind of fair and balanced adjudicatory process that United Educators so reasonably proposes.
by Robert Riversong: may be reproduced only with attribution for non-commercial purposes
Misandric Feminism vs. Progressive Gender Equality (excerpt of above)
Male Victims of Sexual Violence (also an excerpt of the first essay)
Yellow Journalism and the Meme of “Rape Culture” – Rolling Stone and U-VA Gang Rape
Dear President Sullivan – letter from 17 attorneys involved with campus sexual assault claims throughout America, detailing specific reasons why they “are concerned that the University’s Proposed Student Sexual Misconduct Policy is both vastly over inclusive in attempting to define prohibited conduct and ill equipped to guarantee a procedure for resolving allegations that is fair and impartial”.
It’s Time for a U-VA Apology – Op-Ed from a 25-year U-VA professor and his U-VA junior son
Journalistic Fabulism and Ideological Agendas – the Sabrina Rubin Erdely Story
New Puritanism – New Paternalism – The “Rape Culture” Narrative Demeans Women, Demonizes Men, and Turns Universities into Witch Hunt Tribunals
Dear Senators – letter from 20 attorneys critical of the Campus Accountability and Safety Act (S. 2692)
Sexual Assault and Justice: Can we reconcile the belated attention to rape on campus with due process? by Nancy Gertner, feminist lawyer, retired federal judge and Harvard Law professor
The Pendulum Reverses – Again – The Betrayal of Liberty on America’s Campuses & Men Strike Back against Title IX Tribunals
HELP for DOE Regulatory Excess – A Senate Task Force Report Recommends Scaling Back the Mountain of Regulations Strangling Higher Education Institutions
Men are Twice-Raped – Domestically and Globally, Men and Boys are Victims of Sexual Violence at rates Equal to those of Women, and are Assumed to be Villains whenever a Woman Accuses
All Sex is Rape – All Men are Rapists : Patriarchy = Rape Culture
A Model of Campus Gender-Based Harassment – The Columbia University “Mattress” Story
A Case Study in “Politically-Correct” Reactionary Response – The Duke Lacrosse Team Stripper Rape Hoax
Two Over-Privileged Millennials Engage in Sex and Get F-cked – The Stanford “Model” Student and her Silicon Valley Mentor
When the Megaphone becomes the Gavel – Two legal experts on sex discrimination law and procedure argue that the current Title IX mandates for America’s colleges and universities are legally unsupportable and both practically and ethically indefensible.