The independent news organization of Duke University

Dear Betsy

problematic people doing problematic things

Columnist's note: "Content Warning: Sexual Assault”

Despite a coordinated campaign of thousands of letters, phone calls and visits to Congress, Betsy DeVos was still confirmed as Secretary of Education. That it took the unprecedented vote of the Vice President to confirm her in no way lessens the authority she will exercise. A person manifestly unqualified—with no prior experience in education—revealed the extent of her ignorance through her confirmation hearings. She didn’t understand the difference between proficiency and growth, refused to agree to uphold federal disability law and failed to state any commitment to enforcing Title IX, the federal law protecting survivors of sexual assault and setting standards by which schools are required to comply.

I’ve written in the past about what Secretary DeVos might do in the area of Title IX and what the repercussions might look like. I’ve also written about how the Republican Party Platform explicitly states a desire to roll back Title IX, leaving the investigation and adjudication of sexual offenses to the police. While I’ve touched on the incredible importance of why universities handle allegations of sexual assault and don’t just rely on the police, I have yet to paint the doomsday picture of what sexual violence would look like without any involvement by universities. Calling it doomsday is not an exaggeration; universities play a critical role in ensuring the safety of victims of sexual violence. Their absence would leave rape rampant at colleges and leave victims without any means of redress. Why?

Because states don’t know how to handle sexual assault. Take North Carolina.

North Carolina has some of the worst laws on the books for rape in the country. A combination of statutory law and precedent set by state courts have created murky definitions of rape and sexual assault that preclude a wide array of offenses from prosecution that most reasonable people would consider criminal.

Both first and second-degree rape in North Carolina is limited to vaginal intercourse, meaning that men cannot legally be raped. Forced oral and anal intercourse, no matter how violent or severe, cannot be legally labeled as rape. Nowhere do the laws define consent nor require either party to procure it prior to engaging in sexual activity.

In 1979, the Supreme Court of North Carolina determined in State of North Carolina v. Donnie Leon Way (State v. Way) that consent to an act cannot be withdrawn in the middle of the act. While each new act of sexual intercourse would require the victim’s willingness, if penetration is initiated with the woman's consent but then she changes her mind mid-act, “the accused is not guilty of rape.” In 2010, prosecutors invoked the ruling in State v. Way to drop criminal rape charges against a football player accused of raping a young woman. The district attorney’s office wrote that the victim initially consented to sexual intercourse but changed her mind midway because the intercourse was painful, and she told the man to stop. He refused. The fact that the woman had changed her mind and said “no” was not in question. Her “no” was just legally irrelevant.

Since first and second-degree rape and forcible sexual offenses contain components requiring that attackers use physical force, victims are required to resist in some way unless they demonstrate they were “mentally disabled, mentally incapacitated, or physically helpless.” Meaning: a verbal “no” is not enough to prove someone did not consent to intercourse; a victim must physically resist. This is despite the fact that research has shown that as many as fifty percent of rape victims experience a “primitive immobilization response” during an assault, causing victims to freeze and be physically unable to fight back.

Further, victims who willingly drink alcohol or use drugs do not qualify as being legally mentally incapacitated. The result is that victims who are incapacitated by drugs or alcohol are not exempt from the state’s requirement that they physically resist a sexual assault, even when physical resistance would be difficult or impossible under the effects of alcohol.

The result of this mess of laws? The vast majority of sexual assaults at universities are not subject to legal prosecution in this state. Even when victims do everything right—report their rapes to the police, complete a rape kit, subject themselves to interrogation and evidence collection—it is still often not enough for the police to prosecute the offender. Even when college rapes do result in physical injury beyond the rape itself (which is a small minority of cases), there is no guarantee of prosecution.

I once sat with a friend through her rape kit. Her body was beaten black and blue and the rape resulted in an ongoing back injury. She reported to the police. No criminal charges have been filed.

University systems, while certainly imperfect, are absolutely crucial to the fight against sexual violence when criminal systems like North Carolina fail to account for the vast majority of attacks. Universities can expel perpetrators, provide victims with academic accommodations, and put in place orders barring a perpetrator from interacting with their victim. These are vital steps in mitigating the aftershocks of sexual trauma; between 30 and 65 percent of rape survivors are likely to experience posttraumatic stress disorder (PTSD). One-third of rape victims report contemplating suicide and are 13 times more likely than non-victims to have attempted suicide. Rape victims are over three times more likely to have “major alcohol problems” than non-victims, and 26 times more likely to have “serious drug abuse problems” than non-victims. 30 percent of college victims report their assaults affecting their schoolwork or grades, twenty percent of sexual assault victims contemplate transferring or dropping out of school, and ten percent withdraw from classes or change their course schedules.

If universities withdraw themselves entirely from investigation allegations of sexual assault, most victims will lose their only means of redress. If I had not been able to rely on Duke’s hearing process, I don’t know if I would have been able to complete my education at Duke.

It is my hope that Secretary DeVos will be persuaded by the multiple sexual violence prevention organizations, survivors, and activists who have been working to convince her to uphold Title IX. Past and future victims across the country are counting on her.

Dana Raphael is a Trinity senior. Her column, "problematic people doing problematic things" runs on alternate Mondays.

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