Against Taking Rape 'Seriously': The Case Against Mandatory Referral Laws for Campus Gender Violence

36 Pages Posted: 16 Apr 2018  

Alexandra Brodsky

Yale Law School

Date Written: March 30, 2018

Abstract

In response to growing national concern about gender violence on college campuses, legislators have proposed a rash of state and federal bills that would require schools to refer all sexual assault reports to the police, regardless of the student victims’ wishes. These so-called “mandatory referral” laws appeal to a popular intuition that the best way to address rape is to involve law enforcement. Yet surveys, victims’ criticism, and the history of other efforts to force survivors into the criminal legal system show that such bills would discourage survivors who wish to avoid criminal intervention from reporting to their schools and, as a result, directly undermine the wellbeing of victims and reduce opportunities for accountability. Despite clear shortcomings, opponents of campus rape reform have been able to champion these counter-productive bills under the guise of supporting survivors by co-opting a historically salient feminist strategy: demanding that policymakers take gender violence “seriously,” which the public imagination equates with criminal prosecution. This Article maps the political landscape that gives rise to mandatory referral bills, explains the proposals’ failures as a matter of policy, and calls for a new rhetoric of taking victims’ needs seriously.

Keywords: campus sexual assault, Title IX, policing, civil rights, education

JEL Classification: I24, I23

Suggested Citation

Brodsky, Alexandra, Against Taking Rape 'Seriously': The Case Against Mandatory Referral Laws for Campus Gender Violence (March 30, 2018). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 53, No. 1. Available at SSRN: https://ssrn.com/abstract=3099613

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