SEX ON CAMPUS AUGUST 29, 2013
Last spring, Swarthmore joined the growing list of prestigious colleges induced to rewrite their sexual misconduct policies after students told the federal government the schools belittled their reports of assault. Today, The New York Times reports that the student at the helm of the two Swarthmore complaints, 19-year-old junior Mia Ferguson, has had her position as a paid resident adviser in a Swarthmore dorm revoked because she wouldn’t give up the name of a student who contacted her about being raped. Ferguson doubts the school's motives: “It’s not just ironic, I think it’s retaliation,” she told the Times.
If Ferguson is right, Swarthmore isn’t the first college to leverage its disciplinary code against a student who has impugned its practices. The University of North Carolina threatened to expel a sophomore who made the story of her rape public, suggesting she might have violated the school’s “Honor Code” by “intimidating” her rapist even though she kept his name private, and Occidental’s president has disparaged student activists. The Swarthmore case is more opaque because the legal situation is truly sticky; the federal law Title IX requires college officers to report any and all knowledge of sexual misconduct, and Ferguson’s advisory role can and probably should make her subject to that rule.
The Times’ Richard Pérez-Peña does a great job sussing out the legal complexities here. In brief, Ferguson says the law doesn’t apply because she learned of the case before she started her job in the dorm; Swarthmore argues it does because she brought the story up at a resident adviser training session; Ferguson contends that the school was told about the assault years ago, and that administrators told her she wouldn’t have to disclose names if she brought up the story. The most important thing to note, though, is that the question of how much victims should be asked to disclose goes far beyond Ferguson’s tussle with Swarthmore. It is probably the most intractable problem facing schools who try to reform their approaches to sexual assault and rape.
Long before a rash of elite colleges were accused of mishandling rape, administrators faced a catch-22. Is it right to require traumatized students to endure lengthy investigations, to relive details so the perpetrators can be punished? Then again, is it okay to let them bypass that crucible if it means the rapist walks free? This is the issue at Swarthmore, where both Ferguson and administrators say the alleged attacker is still a student.
Most schools cope by offering both formal and informal options for students who want to report an assault. The formal option, which brings in outside investigators, is more onerous, but can lead to official disciplinary action. The victim has more privacy, and more control over proceedings, in the informal option (he or she doesn’t even have to share the attacker’s name), but the results are limited—at most, schools may use the informal option to require counseling for both victim and assailant, or to order that the two avoid one another on campus. Both administrators and students say it’s a bad idea to do away with informal proceedings altogether, forcing victims to brave the spotlight just to make a report and probably deterring even more students from coming forward. But some activists and legal experts say schools shouldn’t have the option to deal with the most serious kinds of sexual misconduct, like violent assault and rape, internally. “The incentive to sweep sexual violence under the rug in the real world and on campus is strong,” New England Law School professor Wendy Murphy told the alumni magazine at Yale, which was recently fined by the Department of Education for mishandling sexual misconduct. “The real remedy to that is not to offer an alternative form of justice, or a less effective form of justice, because that just indulges those problems.”
Much of the criticism leveled against Yale, Swarthmore, and other schools has been driven by revelations that they don’t always report sexual crimes on campus, which they are required to do under the Clery Act. Schools keep their public faces clean—and, as Murphy put it, “sweep sexual violence under the rug”—by pushing students to use the informal complaint process instead of involving external law enforcement. One of Ferguson’s co-complainants accused Swarthmore of this in the spring. In April, Hope Brinn told the Times “that a fellow student repeatedly sexually harassed her and broke into her room in the middle of the night. Ms. Brinn, a sophomore, said that college administrators tried to dissuade her from making a formal complaint, made light of what had happened, said that she was partly to blame, and in their official records, inaccurately described her allegations to make them seem less serious.”
It’s too early to tell how the dispute over Ferguson's resident adviser position will be settled. But her clash with Swarthmore illuminates the difficulty of drawing a line between protecting victims’ privacy and denying them their rights—not to mention endangering their safety and the safety of other students who don’t know the person down the hall has been accused of rape. Ferguson helped hold Swarthmore accountable for crossing that line. Now the school is accusing her of doing the same.
Nora Caplan-Bricker is an assistant editor at The New Republic. Follow her on Twitter @NCaplanBricker.