Abstract
Sharyn J. Potter on leveraging consumer laws to reduce on-campus assaults.
Rape in College: Statistics and Current Policies
One in five women entering college will be a victim of sexual assault. Rates of campus sexual assault have remained unchanged since Mary Koss’s formative campus prevalence study was published over 30 years ago. In 2019, the 1-in-5 statistic represents approximately a quarter-million U.S. female high-school seniors who will enter college in the fall and be sexually assaulted before they graduate— if they graduate at all. And that number may be too low: some scholars believe the real rate is closer to 1-in-3, and that the 1-in-5 estimate represents someone just halfway through college.
Multiple studies including two by criminal justice professor Bonnie S. Fisher and her colleagues and psychologist Lindsay Orchowski and her colleagues show that most victims will tell a friend who is unfortunately untrained to respond to a crime. Only 4% of sexual assault victims disclose to a campus professional who could help them access medical, police, or academic assistance. Psychologist Jennifer Demers and colleagues find victims frequently blame themselves, tell no one, and isolate themselves. Many stop attending and fail classes.
Two influential federal initiatives—the 2011 Dear Colleague Letter and the formation of President Obama’s 2014 White House Task Force to Protect Students from Sexual Assault—effectively intensified campus administrators’ responsibility to address sexual assault. These initiatives are currently under discussion. As the Center for American Progress points out, Secretary of Education Betsy Devos’s 2017 proposed revisions to the 2011 Title IX Amendments would diminish schools’ liability, bolster protections for the accused, discourage victims from coming forward, and support an institution’s decision to use a higher “clear and convincing” standard of evidence rather than the lower “preponderance of evidence” standard. In an Inside Higher Ed article, Ted Mitchell of the American Council on Education charges that the proposal “makes the faulty assumption that colleges are a reasonable substitute for the criminal and civil legal systems.”
Present Situation
College students (and their families) should be entitled to protection under consumer product safety rules, similar to the purchase of any other consumer product. While it may not seem intuitive, a semester at college, like a new car, is an expensive product or service. Prospective car buyers consider price as well as their needs and preferences. Similarly, high school seniors and their families evaluate colleges against a set of preferences, including affordability, program offerings, size, and location. Ironically, the amount of money that U.S. colleges and universities spend annually to fill their seats is strikingly similar to the sums spent on vehicle sales advertisements. For example, in 2017 the automobile industry spent approximately $736 to sway each car buyer; the previous year, colleges and universities spent roughly $750 per head to convince 2.2 million college-bound high school seniors to consider their institutions.
Sociologist Fabio Rojas explains that colleges transitioned from the regime of in loco parentis, under which administrators could act with few restraints, to operating today as organizations in which members have procedural rights and the college has obligations to students, including the provision of safety. Students (and their families) are purchasing time within an environment, and there is a presumption of responsibility for customer safety and monitoring. Campus administrators understand this responsibility and have measures in place to deter crimes including theft, underage drinking, drunk driving and plagiarism. They may point out the number of blue security lights positioned on campus walkways. However these lights do not deter the majority of student assaults: 85-95% of campus assaults are perpetrated by someone the victim knows and occur in residence halls, fraternities, and apartments.
Financial Responsibility
Victims and their families bear most of the financial burden of campus sexual assault. In a 2016 New York Times op-ed, one victim’s mother, Laura Hilgers, reports a total cost of $300,000 for an assault victim who fails to complete their degrees. This figure includes lost tuition, medical treatment, and re-enrollment fees. Few families have the resources to support a child financially after a sexual assault. In addition to forfeiting money they had saved to send the child to college, these families are typically saddled with outstanding college loans. They still owe money for services or a degree they haven’t received.
The Office on Women’s Health in the U.S. Department of Health and Human Services details the physical and mental health consequences of sexual assault, while research published in 2019 by psychiatry professor Rebecca Thurston details long-term health impacts of sexual assault and harassment. With three colleagues, I conducted and published a non-representative study of campus sexual assault victims, aged 24 to 65 at the time of the study, that highlights the economic and human-capital losses: one-third of the participants never finished college, over half took longer than normal to earn a degree, and many recounted serial low-wage jobs with limited health-care coverage. An article by Centers for Disease Control and Prevention scientist Cora Peterson and her colleagues estimates the measureable costs (e.g., medical care costs, lost productivity) per rape victim are $122,461, while the lifetime societal costs for 25 million U.S. rape victims are approximately $3.1 trillion dollars (in 2014 dollars).
Campus administrators use a variety of strategies, including insurance, self-insurance, and legal retainers to contain financial liability and reduce reputational risk. There are no comparable mechanisms and straightforward methods for victims and their families to seek financial remedies for their purchase of a defective product: a college semester in which a crime well known to campus authorities is committed against the enrolled student.
Policy Proposal
The purchase of a college semester should be treated as analogous to the purchase of other products and services. The 1975 federal Magnuson-Moss Warranty Act, the Uniform Commercial Code, and state lemon laws all impose financial liabilities on entities that knowingly sell defective products; there is robust legal precedent for reimbursing consumers who purchase unsatisfactory services and products. Consumers, who purchase a defective car or food processor, are protected by federal and state laws. And consumers are also eligible for compensation for poor services: consider restaurant customers exposed to food poisoning and airline passengers whose flights are delayed or canceled. Similarly, public health researchers find that dram-shop laws hold restaurants and bars accountable for patrons who leave such premises intoxicated and later maim or kill. Amusement parks, too, are responsible for injuries sustained on unsafe rides; settlements for a spinal injury have reached $3 million. By contrast, no existing laws require universities and colleges to reimburse campus sexual assault victims for lost tuition.
If the law treated a college education as a consumer purchase like a car or an appliance, schools would be obligated to reimburse a consumer who is harmed or whose purchase is defective. If the campus administrators could demonstrate that they had taken all known precautions to prevent sexual assaults, less responsibility would be ascribed to their institutions. But when 20% of their female and 6% of their male customers are predictably sexually assaulted, colleges and universities should reasonably be held liable.
Remedies
Consumer protections ought to be put in place to compensate campus sexual assault victims whose institutions have failed the most basic lemon-law test by selling a faulty product or—to use the dram-shop analogy—by knowingly allowing conditions that facilitate such assaults. Limits of exactly what counts as negligence on the part of the institution need to be determined, as would the types of assault that could have been prevented with reasonable actions and those that are not the responsibility of the university. For instance, campuses would not be responsible for an assault perpetrated at an organization unsanctioned by the university (such as a Greek organization whose ban has been well publicized). As with all new legislative proposals, the details of the law will be discussed as it is implemented, and new rules of evidence will be detailed to assign liabilities.
Preponderance of evidence—the lowest standard of legal proof— should be used to adjudicate cases on tuition reimbursement, since the goal is not to prove guilt but to ensure customers are compensated when the products they purchase in good faith are defective.
This remedy would, in turn, require victims to report sexual assaults promptly. Following a campus sexual assault, victims should have a minimum of two reporting options: (1) to report the assault via a confidential online system that triggers a meeting with a trained third-party representative within 48 hours, or (2) to file a report with a trained law-enforcement representative, medical practitioner, or counselor within 48 hours. All campus community members (faculty, staff, students, parents/guardians, and alumni) should be educated about the policy and reporting options. It should be made abundantly clear that this mechanism is to be used only in the case of campus sexual violence; it is not intended for students distressed for other reasons. Students who use the mechanism under false pretenses should face university disciplinary action, including suspension.
When it is predictable that over 20% of college and university female customers and 6% of their male counterparts will be sexually assaulted while enrolled, shouldn’t we reconsider the institution’s responsibility to protect its customers from crime? At the same time, we should consider revising legal burden-of-proof requirements to encourage victims to inform university officials and thus be in a position to pursue fair remediation.
Lemon laws have been instrumental in improving consumer safety. In an era of epidemic rates of campus sexual violence, when an untold number of individuals’ educations have been disrupted or abandoned, I believe these same laws might be leveraged to improve student safety. The intent of my proposal is not to punish institutions of higher education, but to engage them in strategies to reduce a rate of campus sexual assault that has persisted for over 30 years.