Toward a Civilized System of Justice: Re-Conceptualizing the Response To Sexual Violence in Higher Education

Abstract

The reporting, investigation, and prevention of sexual violence in settings that are closed off from the greater community and subject to their own laws, rules, norms and biases present special challenges for survivors of sexual violence. This essay builds on our existing scholarship that explores the pervasive problem and exceedingly high incidence of sexual violence perpetrated against women in closed institutional systems like prison, the military, and immigration detention centers. Survivors in these contexts are routinely denied access to justice internally and from the external criminal justice system; they also face major limitations (imposed by both federal law and Supreme Court jurisprudence) surrounding their ability to pursue civil litigation against the institutions for harms they endure. There are important lessons to be learned from comparing these closed systems as relates to the operationalization of sexual violence that is perpetrated within. To this end, this work significantly broadens the conversation and considers whether institutions of higher education — in which sexual violence also occurs at high rates — should be similarly contextualized.

Keywords: sexual violence, higher education, closed systems, Title IX, rape, prison, civil liability