Being a very outspoken victims’ rights activist, as well as an advocate who has helped multiple victims of interpersonal violence (IV) on campus, a recurring issue of the discrepancy between student conduct cases and criminal cases is always brought to my attention. If a student is a victim of any form of IV, they currently have a few options if they wish to report: they can choose to pursue the criminal route, have the school handle the investigation, or both. In my experience, victims tend to prefer the school to investigate rather than police. Skeptics often question why victims choose this avenue of reporting, and frequently assume it speaks to the sincerity of their complaint.
That assumption could not be further from the truth. The answer lies in two easy to understand concepts: victims’ rights and the criminal justice system. While at first thought the two may seem to be in synergy, this isn't necessarily the case on modern society. Today, the Criminal Justice system functions on the concept of social harm rather than victims. Sentencing involves the calculation of risk to the community, chance of rehabilitation, and deterrence of future criminal acts. Protecting the public and helping the victim don’t seem mutually exclusive, however the two cannot always be accommodated.
For example, if a woman is sexually assaulted by a close friend, unless she is living with and/or is related to an individual, it can be impossible to get a restraining order without reporting IV to the police and going through an entire criminal investigation. As all defendants have a right to face their accuser, the victim is usually then compelled to testify in court. If the defendant is not found guilty beyond a reasonable doubt, there is a high chance that the restraining order will not hold past the trial.
Title IX and other amendments to the Higher Education Act force a school’s disciplinary process to be more victim-oriented. Reporting the incident confidentially to the school will allow them to immediately issue a no-contact order with the accused. While reporting still has to occur, the university disciplinary process offers many more benefits to the victim. For example, he or she can choose not to participate in the conduct process. He/she can even choose to participate in the hearing by phone or closed circuit TV if he/she does not wish to be in the same location as the accused. Title IX also provides that a hearing be solved as quickly as possible (usually within a 60 day time frame.)
In the interim, the school is also given the power to move the perpetrator if he and the victim share the same classes, residence hall, or dining hall until the investigation is concluded. This gives the victim the breathing room to feel comfortable going to class and walking around campus, while at the same time making sure he or she is not forced to move out of his/her comfort zone, or away from friends and other forms of emotional support.
Currently, all universities are required to have their sexual violence cases use a preponderance of evidence standard. In plain words, this is the “more likely than not” burden of evidence. Since, at worst, a school may expel a student from their campus—which is essentially rescinding a business deal where the school exchanges money with the student for courses—the burden of evidence does not need to mirror the criminal justice system.
The one time I helped a victim navigate the state investigative system, I was reminded of how unreliable said system can be. After the victim reported the incident to local police, they called witnesses to talk, yet were never able to schedule an interview time. After two weeks of updates (meaning talking to witnesses, but never interviewing them), there was complete radio silence. Thankfully, the victim pursued the university conduct system as well. Almost a year since the incident was reported (and way after the school resolved the issue), the victim got a call from the prosecutor’s office. They claimed they had misplaced the file during an office restructuring, and wanted to know if the victim would like them to continue their investigation.
A victim’s priority is usually not justice. When a person is hurt and violated, especially when it comes to crimes of a sexual nature, justice becomes more of an afterthought. The concepts that truly matter are security, safety, and stability. All three become even more important as time passes. Most victims I’ve dealt with would trade justice and punishment for these three in a heartbeat. After being attacked or taken advantage of, all a victim wants is to be able to get back to their daily lives, while receiving support from those who matter. Recovery comes when they can sleep at night, walk around campus, or get a bite to eat while feeling safe again. So next time someone questions why a victim doesn’t always go to the police, politely remind them that sometimes, justice and victims’ rights don’t always see eye to eye.
