By Emma Friedlander
friedlan@grinnell.edu

California Governor Jerry Brown signed Assembly Bill 2888 into state law last Friday, mandating that persons convicted of sexually assaulting an unconscious or intoxicated victim must serve a prison sentence and may not receive probation. The bill was inspired by the June sentencing of Brock Turner, a 19-year old Stanford University student who sexually assaulted an unconscious woman on Stanford property. When Turner was sentenced to six months in prison and granted probation after only three, the media responded with outrage at Turner’s lenient sentencing. For some, California’s new law is a triumph for sexual assault survivors. However, the passage of AB 2888 coincides with a strong bipartisan movement to remove mandatory minimums from the criminal justice system, raising questions as to whether the bill is the right move.

“There has been a strong bipartisan push to do away with mandatory minimums. This has been driven by consistent findings that mandatory minimums are inefficient and ultimately cost us more than they are worth,” wrote Professor Logan Lee, Economics, in an email to The S&B. “Unfortunately, laws that fix a specific problem — in this case, the perception that Turner’s sentence was too lenient — often cause more significant problems down the road, such as prison overcrowding, high costs and limited crimes prevented. It’s difficult to predict which story will ‘win out,’ but I expect that mandatory minimums for sexual assault specifically are here to stay.”

Beyond economic concerns regarding challenges with the prison system, mandatory minimum punishments also raise the question as to whether they adequately address the particularities of any case. Although the conduct process for sexual assault at the institution level and the criminal level differs greatly, at Grinnell College, adjudicators must also consider whether mandatory minimums are appropriate or productive.

“In the criminal process, of course, the standard of proof is beyond a reasonable doubt. At the college institution, it’s a preponderance of the evidence,” explained Sarah Moschenross, Dean of Students and Deputy Coordinator for Student Conduct. “It’s not considered best practice to have a standard minimum conduct outcome, because data suggests it actually deters people from reporting. It can also interfere with having a finding of responsibility.”

Because the academic conduct process has a lower standard of evidence, there is less certainty when convicting individuals of assault than in a criminal trial. For Grinnell’s Title IX office, this means that a broader range of outcomes must be offered to cover a broader range of possible misconduct.

“The more serious the act, the more serious the outcome, and I think we’re pretty clear on that. But I still think there needs to be a range, because every case is different,” said Angela Voos, Title IX Coordinator.

Voos’ comment was in response to the question of whether a broad range of outcomes should also be offered when the respondent is specifically found responsible for penetration without consent. Reverend Deanna Shorb, Deputy Coordinator for Confidential Response and Support and Advisor for Grinnell Advocates, believes that the College’s response to convictions should be stronger and more uniform.

“It’s absolutely true that every case is different, … but I believe that there still may be a way to categorize,” Shorb said. “If the [respondent] is found responsible for sexual assault, it is not too much to ask that that person isn’t here until the other person graduates. Period. What has caused a little bit of a hiccup with that in the past has been … if the complainant takes a semester off and the outcome decision is being made based on the complainant’s graduation year, that could also be problematic. We’re not providing what I understand to be required by the Campus Safety Act and Title IX, which is a safe learning environment.”

Sexual assault cases are inherently more charged and personal than other crimes, making them difficult to approach in a formulaic or uniform manner. The treatment of sexual assault on the criminal level must contend with this sensitivity, as must administrators on the institutional level, when adjudicating sexual assault.

“Navigating crime issues, particularly sex-related crime, is always difficult because a cold rational analysis often feels unsatisfying. Making good decisions requires us to place some monetary value on each crime we prevent and that is an inherently uncomfortable proposition,” Lee wrote. “One must be respectful to the individual experiences of victims while recognizing that both societal costs and due process for the perpetrator must be considered.”

The question as to what extent the adjudication process should also aim to reform or benefit a sexual assault respondent is a question at the college level as well. Outcomes primarily concern the victim-survivor’s safety and healing, but may also consider a reform process for the perpetrator. Nonetheless, some consider it unreasonable to welcome back perpetrators of sexual assault, regardless of the results of any reform-based tests or standards.

“I, being one of the person who advises [student survivors], actually don’t know what we’re requiring respondents to do if they’re suspended before they come back,” Shorb said. “Some experts may understand what reform might look like, if there’s healing or changing possible for a respondent. But otherwise, I think it is the responsibility of the institution not to reintegrate or welcome back someone who’s been found responsible. I don’t know how in good conscience we do. … What is the standard for being able to come back at all to this community? There has to be a community standard.”

Currently, some possible Title IX outcomes, although not all, require respondents to fulfill certain tests or standards before returning to campus.

“We have mandated a number of different medical responses. Assessments for mental health, alcohol and drug use, anger management, are different things that we’ve mandated and [the respondent] has to satisfy before they can come back if they were suspended,” Moschenross said. “They have to go through a process of communicating with different agencies on our campus, through SHACS or whatever, to satisfy that they can be on campus again in a safe way. That would be not appropriate for some cases, but in other cases [it’s been implemented].”

Despite the separation between the criminal and institutional processes, Shorb believes, after years as an advocate for survivors at Grinnell, that the institution’s approach to sexual assault always improves when regulated on the government level.

“I don’t think this institution, and in fairness any institution, would be doing it right if there weren’t regular federal guidelines and acts. It is only because of the feds that academic institutions have stepped up. I’ve seen a difference between how students are helped and heard now and a few years ago, when students certainly were not,” Shorb said. “Unless and until the federal government has mandatory outcomes for academic communities for respondents, we will not. Until the federal government mandates outcomes for sexual assault, I don’t think academic institutions will. The possibility of litigation from respondents and/or their families is far too great.”

Shorb explained how in 2011, a Dear Colleague letter from the Office of Civil Rights finally required all institutions to have a Title IX coordinator. Grinnell, like other institutions, scrambled to fill this position, a challenge since very few people had proper training or experience in this field. At Grinnell, Angela Voos filled the position temporarily while she also worked as the President’s Chief of Staff and the Vice President of Strategic Planning. Today Voos still holds these positions, although the national standard calls for a full time Title IX coordinator. Nevertheless, Shorb contends that since the federal government has required Title IX staff and training, the College’s approach to sexual assault has vastly improved. This improvement over the last few years was also aided by the redistricting of response for sexual assault and domestic violence in Iowa.

“That was actually the best thing that ever happened to the Advocates program. Crisis Intervention Services out of Indianola is a great partner,” Shorb said. “They do the trainings as mandated by state institutions. When they train our advocates, which is 30 to 32 hours, they then give the confidentiality umbrella for our advocates. Those folks have meant that advocates have come into a new era.”

Title IX coordinators Voos, Moschenross and Bailey Thompson, Deputy Coordinator for Case Management, however, believe that state and federal processes should instead be informed by performance at the institutional level.

“My opinion is that the criminal system should actually be influenced by our system. We give our victim-survivors as much agency and autonomy as they can,” Thompson said.

Voos added that the autonomy provided by the conduct process at Grinnell and other institutions has allowed victim-survivors to more effectively use both systems.

“I think that Title IX in the educational world has raised the bar for the criminal system,” Voos said. “Victim-survivors are having more confidence to come forward and use both systems. That’s pushing both systems in a very good direction. More transparency, better adjudication, more information, better invention.”

Despite supposed improvements at both the institutional and criminal level, students and administrators alike recognize the demand and need for more transparency in outcomes for sexual assault.

“We certainly have in the last four years segued into a much better process … but I still think it is ok for students to want a better understanding of outcomes,” Shorb said. “I think anger is ok, but if we’re trying to work together to figure out what appropriate outcomes might be, we need a dialogue, not a shouting match.”