Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys

70 Pages Posted: 9 Jan 2017 Last revised: 15 Jul 2017

Date Written: October 1, 2016

Abstract

There is a national conversation about the role and responsibility of colleges in addressing campus sexual assault, including a debate about the definition of consent, reporting requirements, interim measures, adjudicatory processes, appropriate standard of proof, accused students’ legal rights, and judicial oversight. As colleges increase internal reporting requirements and form information-sharing agreements with local law enforcement agencies, student victims begin to lose their choice and agency in reporting decisions and investigations. And as college adjudicatory proceedings become more complicated and extend past adjudicatory findings into appeals and lawsuits, student victims lose their voice and ability to fully enforce their rights. The purpose of this Article is to bring victims back into the discussion by emphasizing their legal rights to safety, privacy, and education, and by suggesting the need for victims’ attorneys to promote victims’ choice and voice throughout overlapping legal processes.

Survivors of sexual assault generally report negative experiences with the criminal justice system, civil law system, and college adjudicatory system—all sources of secondary trauma. This Article suggests that access to victim-centered, comprehensive legal advice at all stages of sexual assault investigations and the adjudication process has the potential to diminish secondary trauma by providing student victims with two vital tools: a choice to initiate and participate in a criminal or campus investigation by providing sufficient information for informed consent and a voice throughout the investigation and legal proceedings. Specifically, the Article argues that student victims would benefit from access to victims’ attorneys at four distinct stages following a sexual assault: (1) the pre-reporting stage–to provide sufficient information and legal advice to ensure reports to law enforcement and colleges are intentional and provided with victims’ informed consent; (2) the investigation stage—to ensure that student victims maintain agency throughout the investigation, help prevent unprofessional investigation techniques, and promote access to interim measures necessary to meet safety, privacy, and educational needs; (3) the hearing stage—to enforce victims’ safety rights, amplify victims’ voices in the proceedings, and reduce secondary trauma from victim-blaming questions and arguments; and (4) the post-hearing stage, including appeals and civil lawsuits—to provide representation in internal college appeals, lawsuits filed by the respondent or victim against the college, and retaliatory complaints or lawsuits filed against the victim, including defamation and harassment.

Keywords: Title IX, Campus, Sexual Assault, Students, Civil Rights, Victims' Rights

Suggested Citation

Behre, Kelly Alison, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys (October 1, 2016). Drake Law Review, Vol. 65, 293, 2016, Available at SSRN: https://ssrn.com/abstract=2894620

Kelly Alison Behre (Contact Author)

UC Davis School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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