Sexual Assault in Higher Education – Laws and Protocols

last updated 31 July 2011

During the last fifteen years, the issue of sexual violence within institutions of higher education in the United States (hereafter, IHEs) has attracted much needed attention partially through highly publicized campus sexual assault trials and allegations of reports that are mishandled by school officials. The chances of being a victim of rape are four times higher for a female college student than for any other age group.[1] In response to public pressure, recent federal legislation has mandated that institutions of higher education grapple with - and properly respond to - issues of rape and sexual on college campuses.

In 1990, for example, the U.S. Congress passed the Student Right-to-Know and Campus Security Act (20 U.S.C. §1092) to require all Title IV eligible IHEs to publicly disclose crime statistics and crime prevention and security policies and procedures on campus. The law was amended in 1992 to require that schools afford victims specific basic rights and again in 1998 to emphasize reporting obligations regarding sexual assault on campus. This most recent amendment is commonly known as the Clery Act.

More specifically, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, codified at 20 USC 1092 (f) as a part of the Higher Education Act of 1965, is a federal law that requires colleges and universities to disclose certain timely and annual information about campus crime and security policies. All public and private institutions of postsecondary education participating in federal student aid programs are subject to it. Violators can be fined up to $25,000 by the U.S. Department of Education or face other enforcement action.

Though colleges and universities have been well-aware of the problem of sexual assault and rape on campuses for the past 20-30 years or more, and have directed substantial resources towards anti-rape programming and services for students who are victims of sexual assault, rates of sexual assault in institutions of higher learning have not declined in the past five decades.[2]

In April of 2011, Vice President Joseph R. Biden and Education Secretary Arne Duncan released an updated set of guidelines that direct schools and colleges how to more effectively respond to allegations of sexual assault in compliance with Title IX, the statute that prohibits sex-based discrimination in educational institutions that receive federal funding.[3]  The letter stated that schools must follow a three-part protocol:

·         Distribute a notice of nondiscrimination policy to students, employees, and other campus personnel

·         Designate a Title IX coordinator to manage and respond to complaints

·         Develop and publish grievance procedures that provide “prompt and equitable resolution” of complaints

The letter also stated that for schools to comply with Title IX standards, they must use a “preponderance of the evidence” standard (i.e., that the complaint is more likely than not to have taken place) rather than the stricter “clear and convincing” standard used by many institutions.

Many college administrators have participated in victim silencing by encouraging victims to keep quiet about their charges and occasionally threatening punishment for victims who brought their cases to the attention of law enforcement.[4]  Some colleges also utilize informal negotiations between students via a school administrator, and/or host “mediation” between the victim and perpetrator in the same room. The new guidelines provided by Vice President Biden and Arne Duncan’s explicitly state that such mediation is inappropriate.[5] 

Despite the emergence of concern about sexual victimization among postsecondary students, little systematic information has been published about the content of sexual assault policies, protocols, and programs that currently exist in IHEs. As a result, in Public Law 105-244, the United States Congress mandated a study designed to address nine issues relating to prevention efforts, victim support services, reporting policies, protocols, barriers, and facilitators, adjudication procedures, and sanctions for sexual assault. On 1 November 1999, the National Institute of Justice awarded a grant to Education Development Center, Inc., and its partners - University of Cincinnati and Police Executive Research Forum - to carry out this study.

This Final Report looks at how the nation's IHEs are responding to reports of sexual assault and offers a comprehensive descriptive baseline. Many of the topic areas addressed have not been previously examined, which the authors argue underscores the importance of findings that are contained in this report. The main conclusions from this investigation include:

·        There are no standard institutional or state definitions of "sexual assault" and "rape." No matter which definitions are used, the majority of student victims do not define their experience of rape as a crime.

·        Only 36.5 percent of schools reported crime statistics in a manner fully consistent with the Clery Act which requires the reporting of forcible and non-forcible rape and sexual assault in Annual Security Reports (ASRs).

·        Whereas about 3 in 4 traditional four-year public schools, four-year private nonprofit schools, and HBCUs provide information on the process to file a written complaint alleging sexual assault, only slightly more than 1 in 10 small, non-residential, for profit schools provide students with such information.

·        IHEs utilize a variety of options to report sexual assaults and rapes on campus: confidential (84.3 percent), anonymous (45.8 percent), anonymous internet (3.7 percent), and third party (34.6 percent).

·        Active support from friends is the primary factor that distinguishes victims who report the crime to campus and/or local authorities from those who remain silent. Yet, less than half of all IHEs provide new students with sexual assault awareness education; less than half of all IHEs provide students with acquaintance rape prevention programming.

·        Only 37.6 percent of IHEs require sexual assault sensitivity training for campus law enforcement/security officers, although this training is fairly standard at four-year public schools and HBCUs.

·        Only 40 percent of schools provide students with sexual assault response training (e.g., resident hall assistants and student security officers).

·        Any policy or procedure that compromises, or worse, eliminates the victim's ability to make her or his own choices about proceeding through the reporting and adjudication process--such as mandatory reporting requirements without an anonymous reporting option--not only reduces reporting rates but may be counter-productive to the victim's healing process.

·        Recognition of anonymous reporting, use of written law enforcement protocols for responding to sexual assault reports, coordination of crisis response procedures, access to forensic medical evidence collection, and sexual assault peer education are widely perceived by administrators, victim advocates, law enforcement officers and students activists to be strategies that facilitate the reporting of sexual assaults on campus.

·        Roughly one quarter--though about 6 in 10 four-year public schools and 4 in 10 HBCUs--provide victim-related support services to special populations of students (e.g., non-native English speaking, living off-campus, sexual minority, physically challenged).

·        Due process procedures for the accused are utilized at only 37.3 percent of IHEs.

·        The most common penalties employed by four-year (residential) institutions include expulsion, suspension, and administrative actions such as no-contact orders. Only a minority of IHEs impose sanctions of fraternities and athletic teams.

Based on these study findings, the authors of "Campus Sexual Assault: How America's Institutions of Higher Education Respond" offer two types of recommendations: those aimed at providing support to IHEs and in creating comprehensive sexual assault policies that are specific to their school type, and those that suggest areas in need of further examination. Some of these recommendations include:

·        Investigate barriers and facilitators to victims' abilities to identify rape as a crime.

·        Investigate ethnic and other cultural factors in campus sexual assault.

·        Develop guidelines for meeting Clery Act reporting mandates.

·        Develop a model sexual assault policy manual.

·        Develop a model sexual assault education pamphlet for students.

·        Develop a set of model services for victims of campus sexual assault.

·        Design policies and protocols that prioritize victims' needs.

In this manner, as colleges and universities continue to make concerted efforts to improve sexual assault prevention, response and reporting efforts, and recommendations are adapted by national educational funding agencies, students and community members at large will benefit from safer learning environments and a greater sense of vigilance against sexual violence within and beyond the ivory towers.

Further resources:

National Online Resource Center on Violence Against Women. (2011). "Back to School & Continuing Education - Highlighted Campus-Focused Resources."

2008 United Nations expert group report entitled "Good practices in legislation on violence against women", Section 5.C on educational curricula.  For the Russian version of the report recommendations, click here.

Karjane, H.K., Fisher, B.S., & Cullen, F.T. (2002). "Campus Sexual Assault: How America's Institutions of Higher Education Respond." Final Report, NIJ Grant # 1999-WA-VX-0008. Newton, MA: Education Development Center, Inc.

"What College Women Should Know About Sexual Assault, Rape and Sexual Battery" (PDF) and "What College Men Should Know About Sexual Assault, Rape and Sexual Battery" (PDF). The San Diego Police Department created these two brochures for college men and women, in cooperation with Rana Sampson of Community Policing Associates. The brochures present various scenarios and then pose the question, "Is it rape?" Clear answers are provided for each scenario, based on California state laws. The brochure for men lists specific penalties they could face if they get one answer wrong. The materials can be useful in engaging students in dialogue, comparing their perceptions of what rape is against the legal system.

 "Acquaintance Rape of College Students"  (PDF), U.S. Department of Justice, Office of Community Oriented Policing Services



[1] Burnett, Amy.; Mattern, Jody L.; Herakova, Liliana L.; Kahl Jr., David H.; Tobola, Cloy; Borsen, Susan E. (2009). “Communicating/Muting Date Rape: A Co-Cultural Theoretical Analysis of Communication Factors Related to Rape Culture on a College Campus.” Journal of Applied Communication Reseaarch, 37 (4), 465-485.

[2] Armstrong, Elizabeth A.; Hamilton, Laura; Sweeney, Brian. (2006). “Sexual Assault on Campus: A Multilevel, Integrative Approach to Party Rape.” Social Problems, 53 (4), 483-499.

[3] Sieben, Lauren. (2011). “Education Department Issues New Guidance for Colleges’ Sexual-Assault Investigations.” Chronicle of Higher Education, 57 ( 32)

[4] Fisher, Bonnie et al.

[5] Sieben, Lauren.