Sen. McCaskill: If Rape Victims Don’t Report, Prosecutors Can’t Prosecute

By Lauretta Brown | June 5, 2014 | 1:50 PM EDT


Sen. Claire McCaskill (D-MO) (AP Photo)

( - “Prosecutors can’t be criticized for not prosecuting cases that have never been reported,” Sen. Claire McCaskill (D-MO) said Monday on Capitol Hill in response to complaints that university officials are covering up sexual assaults on their campuses.

McCaskill was presiding over the second in a series of three roundtable discussions with advocates, college officials and victims to “improve the response to sexual violence on college campuses.”

“I’m holding these roundtables in order to bring together a diverse group of stakeholders to hear about what is working and what is not, what we can do to improve the response to sexual violence on college campuses, where we may need to legislate, and maybe where we may need to un-legislate,” McCaskill said.

Dana Bolger, founding co-director of Know Your IX, a student advocacy group, questioned the effectiveness of the criminal justice system, citing the widely known “Justice Gap” study which found that only 2 percent of rapists are ever incarcerated. (See Justice Gap paper Lonsway Archambault.pdf)

But McCaskill, a former prosecutor, countered that the same study also showed that only 17 percent of rapes were ever reported.

Prosecutors "can be criticized for not aggressively prosecuting cases and treating victims with respect when they do come forward," McCaskill acknowledged.

“But what we’ve got to do is provide the kind of structure around this issue where victims have every opportunity to make a decision to decide for themselves what they want to do and feel comfortable that they are gonna have support, good information, and adequate resources throughout the process,” she said.

“And f we can do that, then we’re going to have a lot more than 17 [sexual assaults] that are reported out of every 100 and we’re going to have a lot more convictions.” she added. "But the cases that are being reported - I guarantee the conviction rate is higher than 2 percent."

McCaskill, who is conducting a survey of sexual violence policies on the nation’s college campuses, announced plans to introduce legislation based on her findings later this month.

A 2005 Department of Justice (DOJ) study found that only about one third of schools are fully compliant with the 1990 Clery Act, which requires schools that participate in federal financial aid programs to disclose on-campus crime statistics.

The U.S. Department of Education recently released a list of 55 colleges and universities with open Title IX sexual violence investigations.

“When many people think about Title IX, they think about it in the context of women’s athletics, but it is so much more,” McCaskill said. “It is part of our federal civil rights scheme that ensures that students have equal access to educational opportunities free from sexual discrimination.”

Fewer than 1 in 10 of Title IX complaints filed with the Department of Education’s Office of Civil Rights between 2003 and 2013 led to a formal agreement between federal and college officials to change campus sexual assault policies, according to an analysis by the Chronicle of Higher Education.

According to the White House, as many as 20 percent of female college students are sexually assaulted on campus. In January, President Obama appointed a task force to look into the issue.

Jocelyn Samuels, acting assistant attorney general of DOJ’s Civil Rights Division, called the under-reporting of sexual violence on campuses “a civil rights issue.”

But Lindy Aldrich, deputy director at the Victims Rights Law Center, said the trauma often discourages victims from coming forward.

“Often times they are not in a place where they can make and understand the consequences and impact of decisions at that early stage,” she said, “Why I feel so strongly about confidentiality is that that allows victims the opportunity, time, and space.”

Sen. Richard Blumenthal (D-CT) addressed possible ways to enforce better reporting of sex crime statistics from non-compliant colleges, telling that “it depends on crafting a penalty that’s realistic and enforceable.”

Sen. Richard Blumenthal (D-CT) (AP photo)

However, Sen. McCaskill and other roundtable participants noted that the government’s ability to pull federal funding from a non-complaint college would hurt many innocent people.

Instead, Sen. John Tester (D-MT) suggested, the government should pursue efforts to generate bad publicity for non-compliant colleges. pointing out that "there are worse things than monetary punishment."

Noting the ineffectiveness of past Title IX complaints, John Kelly, the victim of a same-sex assault and organizer for Know Your IX, suggested fining colleges on a “sliding scale” and using the fines to help fund efforts to combat the problem.

“I come from Tufts University, which has had four Title IX complaints in the past ten years. Three of them indicated the exact same administrators who are still employed there today. Those are the administrators who victimized me personally in my process, and I know of students they have victimized since my time,” Kelly said.

Lawmakers and school officials discussed the difficulty of balancing a school’s ability to report crimes with the need to ensure victims' confidentiality.

Blumenthal later complained to about “the gaps in resources, the splintering of authority among different agencies and some of the gaps in the law, the need for stronger standards.”

“There has to be confidentiality, but victims should be encouraged to step forward and should be protected,” he said.

Sen. McCaskill noted that she was“working on analyzing the data collected through the survey of 450 colleges and universities that was launched last month” to “learn exactly how schools handle rapes and sexual assaults on campuses - specifically focusing on how such crimes are reported and investigated and how students are notified about available services.”

However, the American Council on Education created a webinar advising colleges on their legal rights in responding to the survey, warning college administrators that such surveys often “provide fodder for additional investigation” and “spur regulatory action.”