Bernie Is Wrong About Rape

DES MOINES, IA - JANUARY 11:  Journalist Jorge Ramos and democratic presidential Bernie Sanders (R) pictured onstage during t
DES MOINES, IA - JANUARY 11: Journalist Jorge Ramos and democratic presidential Bernie Sanders (R) pictured onstage during the FUSION presents the Brown & Black Democratic Forum at Drake University on January 11, 2016 in Des Moines, Iowa. (Photo by Fernando Leon/Getty Images for Fusion)

Dear Senator Sanders,

Your popularity depends on the support of young voters. On Monday night during a Fusion forum, you stated a position on campus sexual violence that reveals your disconnect with your youngest constituents, college-age voters. You stated:

Rape and assault is rape and assault. Whether it takes place on campus or on a dark street. And if a student rapes a fellow student, that has got to be understood to be a very serious crime. It has got to get outside of the school and have a police investigation. And that has to take place. Too many schools are seeing this as 'well it's a student issue, let's deal with it.' I disagree with that. It is a crime and it has to be treated as a serious crime. And you are seeing now the real horror of many women who have been assaulted or raped, sitting in a classroom alongside somebody who raped them. Rape is a very, very serious crime and it has to be prosecuted. It has to be dealt with.

I never want to be in the position -- as a middle-aged, white man -- of telling survivors of sexual violence to whom they should (or shouldn't) report their victimization. I assume you were speaking more to the role of colleges than to the choices of survivors, but they are indivisible, and we need to recognize the privilege older white men bring to any discussion of women's bodies and autonomy. We cannot and should not speak for them. I don't represent their voices, but I do want to share a broader lens by which to view campus sexual violence. There is still time to reconsider your position, and I hope the following points may influence your perspective.

I hope it concerns you that your position is similar to that taken by two bills now before Congress (the Fair Campus Act and the Safe Campus Act) that are co-sponsored by Republicans and opposed by more than 200 survivor, victim's rights and advocacy organizations. Further, your position is aligned with the Men's Rights movement, which believes that rape in this country is a false epidemic contrived by man-hating feminists. I'm a feminist, Senator, and I hope you'll come out as one, too. As a feminist, I believe that women should have equal rights to men, and that men have a responsibility to help other men understand our role in advancing equality, combating misogyny, and changing a rape-prone culture that is designed to subjugate women to men's sexual entitlement.

I'd also like to make sure you know that your position is contrary to Title IX, a federal law enacted in 1974 that has become the most powerful tool victims have for advancing their right to be free from discrimination on the basis of sex in federally funded educational programs, including K-12 schools, colleges and universities. Title IX requires colleges and schools to address and remedy sexual violence. Surely, you didn't intend your comments to roll back the hard-fought protections of Title IX advanced so prominently by the Obama administration since 2011, but your position has that potential if it is not rethought. The position you have taken is predicated on the idea that colleges should not be handling rape cases, which are more properly addressed by the criminal justice system. This fallacy must be called out on three different levels.

First, colleges don't address rapes. They never have, do not currently, and never will. Rape is a crime. No college has the authority to determine that a crime occurred. Instead, colleges address (and are mandated by Title IX to address) all forms of sex discrimination, including sex discrimination that occurs in the physical form of sexual violence. Sexual violence may constitute the crime of rape, but it is also a type of discrimination in physical form. Surely, we agree that colleges should address and remedy sexual harassment and other forms of harassment and discrimination, such as those that occur on the basis of age, race, disability, etc. Why would you want a college to address all these forms of discrimination but not sexual violence, just because it has a parallel to a crime? Many college policies have parallels in criminal law, such a hazing, theft, vandalism, arson and more. You're not arguing to strip all colleges of their authority to address these forms of misconduct just because parallel resolution through criminal prosecution is possible, I trust?

Second, we must understand that criminal convictions for non-stranger rapes that occur on college campuses are so rare (estimated to be less than than 1%) that anyone arguing for a criminal prosecution as the only response to campus sexual violence is really arguing to let the rapist get away with it. I know you didn't mean that. Your comments are a reflection of the common narrative that colleges mishandle these kinds of cases. There is no question that colleges can do better, but there is actually a system that handles sex offenses less effectively than colleges do. The criminal justice system. Your proposed solution.

Prosecutors running for re-election hesitate to take on rape cases unless they are sure winners, which they rarely are. Police agencies all over the country are infamous for their victim-blaming and corrupt responses to rape cases, even if recent improvements are showing some progress on this front. Juries can victim-blame, because they are a reflection of the victim-blaming tendencies in our society. Some judges allow irrelevant sexual history to leak through statutory rape shield protections. This combination of factors has resulted in the fact that our criminal justice system is fundamentally broken for rape cases. I know, Senator, that you want to bring perpetrators of sexual violence to justice, but that cannot be achieved within a system that denies basic justice to survivors. Turning these cases over to a criminal justice system that is actually less effective at addressing sexual violence than college campuses is not the answer. Building stronger campus responses - the goal to which the organization I run is dedicated - reflects the strong desire voiced by many survivors to be empowered with choice, which brings me to my third point.

Reporting campus sexual violence is not a zero sum game, where a survivor's choice to resolve an allegation of discrimination internally to a college forecloses the option to also report that incident to the criminal justice authorities when and if the survivor so wishes. Colleges cooperate with criminal investigations all the time, and many colleges have their own sworn police forces. By federal law, colleges are required to help a survivor report a sex offense to criminal authorities when the survivor so chooses. It's all about empowering that choice. What would be the point of abolishing campus resolution systems for sexual violence cases if a survivor didn't want to pursue a criminal prosecution? Some option is better than no option, and if you want my vote, Senator, you'll need to be strongly committed to ensuring that colleges and schools have the resources we need to improve our efforts to protect students, prevent sexual violence, and respond to it effectively when it occurs.

Brett A. Sokolow, Esq., is the Executive Director of ATIXA, the Association of Title IX Administrators. ATIXA is the nation's largest membership association for administrators dedicated to Title IX compliance and best practices for safer schools and campuses.