I’m frustrated. And I’ll tell you why I’m frustrated. I’m frustrated because of the UNC sexual assault scandal that is in some of the press right now. I’m frustrated that we live in a culture that puts the survivors of a sexual assault on trial more than the accused. I’m frustrated that a school as prestigious as Carolina would threaten a survivor with disciplinary action for intimidating her rapist, just because she decided to speak out about what she sees as an unfair process and a lack of support. I’m frustrated by the comments by student conduct board members, or the comments in every article about this case, that suggest she brought it on herself. I’m frustrated by my friends with whom I’ve been arguing who say that if she wanted a fair hearing, she should have gone to the police. And I’m frustrated by the people who are making this issue about the rights of the attacker instead of the rights of the victim, even when said attacker has not been publicly named.
No doubt this is a complicated case. I will not presume to know whether or not Landen Gambill was forcibly raped by her former partner. I will state, however, that 2/3 rapes are committed by someone the victim knows. Nearly 30% of rapes are committed by intimate partners. What I do believe, though, is that the decisions the UNC administration have made – and the basis for Gambill’s Office of Civil Rights (OCR) Complaint and subsequent media attention – are at least unethical, and most likely illegal.
1.) The case was heard by the student “honor court,” a board of undergraduate students designed to hear violations of the student conduct code. This requires little further elaboration because UNC has admitted that the board should not have heard the case, and have since been stripped of the right to hear them. Unfortunately, Gambill’s case was heard in the interim, between when the University began to respond to the OCR’s Dear Colleague Letter and when the policies changed.
2.) The student court put the victim on trial. According to Gambill, one of the members of the student court stated: “Landen, as a woman, I know that if that had happened to me, I would’ve broken up with him the first time it happened. Will you explain to me why you didn’t?” My response to this the first time I read it is absolute rage. The student a.) presumes to know what she would do if she were in an abusive relationship, even though leaving an abusive relationship is very difficult and complicated, b.) by asking the question, the implication is clear: “if you really were raped, you would have left him. Staying implies consent.” I’ve argued with some people who don’t see that implication in the question, but really I can’t read that question without seeing the insinuation that the victim was responsible for her own assault, c.) the student conduct board brought up a previous suicide attempt (which has no bearing on this case. None.) in her hearing. Why? The only thing I can think of is that this was an attempt to discredit her, that just because she suffered from depression she was more likely to “make up” the story. 
3.) The student board released graphic details of Gambill’s assault to her parents, in potential violation of Federal privacy laws (specifically FERPA). FERPA allows institutions to disclose any and all information to parents if the students are dependents for tax purposes. According to the UNC website, however, the parents would have needed to file for access to that information in advance, suggesting that this was probably a violation after all.
4.) The most frustrating piece for me, however, is that Gambill now faces disciplinary action for speaking out, something I believe to be in direct violation to 2008 amendments to the Clery Act which is designed to protect whistleblowers and victims of sexual assault. From a policy perspective, this decision is especially harmful. If victims are being intimidated, they are far less likely to report a sexual assault. Sexual assault is already underreported and underinvestigated.
5.) In terms of public response, many are wondering why Gambill decided to report to the school rather than the police. I think the answer is at least two-fold. First, the campus has a lower burden of proof than the criminal justice system for adjudicating such cases. Colleges are required to use a “preponderance of evidence” standard for hearing such cases. That is to say, students are held responsible if there is an infinitesimally greater than 50% chance that they did it (this is often dubbed the reasonable observer test – would a reasonable observer presented with the evidence believe that the person was responsible). Courts are required to use a “beyond reasonable doubt” standard – something that’s probably closer to the high 90%s. Second, going through the criminal process requires a much greater emotional commitment and resilience than going through the conduct process for what are usually meager results (rape cases are among the hardest to prove at the criminal standard). This process can cause even more trauma on top of the initial assault. Above and beyond that, though, it doesn’t matter. It was the survivor’s right to choose to whom and when she wants to disclose. Whether or not she reported to the police as well, the campus would still have been responsible for addressing the assault.
6.) To those saying that there isn’t enough evidence: maybe. This isn’t about whether or not the accused actually did assault her (although false sexual assault claims are very rare). It’s about whether the University met its legal obligation and moral obligation to support the survivor. It did not. I believe there are other probable violations here as well (failing to inform her that her alleged attacker was moving back on campus, for instance). Moreover, it’s worth noting that the honor court did find her attacker responsible for harassment after Gambill’s roommate reported behaviors characteristic of stalking, and that an administrator (according to Gambill) obtained a confession from her alleged assailant. As to the rest of the case, we are not privy to the details of the hearing; perhaps there was enough evidence, perhaps there wasn’t, but the above violations should never have occurred.
No institution is perfect. Sexual assault is difficult for any campus to address. But it is a problem that we need to be addressing. Sexual assault is pervasive on college campuses, and if you think you don’t know a survivor, I’d bet you’re wrong. And the level of the press that this case is getting is probably frustrating for students, who just want to put the whole thing behind them. I suspect UNC will probably be found in violation if OCR investigates – that an Assistant Dean of Students had resigned over this very issue, and has joined in the OCR complaint with more than 60 others, is testament to the mistakes that were being made. Let’s spend less time impugning the victim’s character and trying to interrogate her and spend more time addressing the cultural conditions that excuse rape but harass survivors.
Imagine it was your best friend. Your mom. Your sister. Your daughter. You. Imagine if someone asked you why you didn’t prevent your rape.
Talking Points 