'Decriminalizing' Campus Institutional Responses to Peer Sexual Violence
44 Pages Posted: 28 Aug 2013
Date Written: 2012
This article combines and updates two previous articles on the federal laws that govern institutional responses to gender-based violence on college campuses, with a focus on how existing laws encourage or discourage institutions to “decriminalize” those responses — i.e., to adopt responses that do not imitate the criminal justice system. It shows how the groundbreaking anti-sex discrimination in education statute, Title IX of the Educational Amendments of 1972 (“Title IX”), and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery”) encourage decriminalization of “back-end” institutional responses once a college or university has knowledge of specific violent acts. However, it also explains how these same federal statutes discourage institutions from decriminalizing their “front-end” responses with regard to victim reporting and other information gathering regarding violence against women on campus. That is, because Clery’s text and Title IX’s enforcement mechanisms give colleges and universities an incentive to avoid knowledge of gender-based violence happening on their campuses, and because the criminal justice system tends to discourage victim reporting of such violence, both statutes fail to create incentives for institutions to decriminalize their responses. The article concludes by offering several recommendations for the ways in which Title IX and Clery can be better enforced and/or changed to encourage colleges and universities to decriminalize their front-end responses, including by requiring all institutions to participate at regular intervals in a nationally-based, locally-administered survey regarding gender-based violence on their campuses, as well as to create campus-based victims’ services offices.
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