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RUNNING HEADER: YES MEANS YES

Yes Means Yes: A Legal Analysis of On- Campus Assault


Aliyah Simmons
First Colonial High School
Legal Studies Academy

Abstract

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The purpose of this paper is to exemplify the alarming statistics and large quantity of sexual
assault reports, which are often hidden by educational institutions in effort to preserve their
reputations. In this paper there will be a profound legal analysis of not only sexual assault on
college campuses, but laws that are currently in place and ultimately disregarded as well. In
addition, this paper will discuss multiple elements of case law, and compare and contrast the
statues adhered to in states and college institutions respectively in order to provide an idea of
how the issue is being dealt with in various realms. Lastly, the author, will conclude with
providing insight into the future through the presentation of the current action and policy reform
organizations working to end this epidemic.

Yes Means Yes: A Legal Analysis of On- Campus Assault


Sexual assault for the purpose of this paper is defined as a person performing or
attempting to perform any sexual acts against a complaining person. This includes unwanted
intercourse, constant harassment whether verbal or physical, and any form of dating violence.
Sexual assault is an issue that has been globalized the past couple of years. More and
more claims of sexual assaults have been filed in the past five years than ever before. This means
that there has been an increase in victims of sexual assaults as well. This issue is handled
relatively well in the federal and state realm. However, this same standard of care is not
transferred into educational institutions, specifically college campuses. The statistics for on-

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campus assaults have inflated immensely, and society has gotten very little notification of the
issue.
Overall 88% of on- campus assaults never get reported. In addition, out of the remaining
12% of reported assaults, only 4 % of them actually result in an arrest, and 2 % make it to a trial
(Dick, director, 2015). This is due to the fact that under the Educational Amendment Title IX,
any claims of sexual assault filed by a college student are taken care of by the respective
institution (Brewer, 2015).
In 2012 alone 45% of college institutions reported 0 sexual assaults on their campuses
(Dick, director, 2015). The universities want to uphold their reputation as a safe and elite
institution, and because of this, the amendment is abused. As a result, the safety of many students
has been compromised, and their reports have been overlooked and undermined. To make
matters even more complex, the perpetrators of these acts rarely face any consequence higher
than suspension from the university.
Whereas, in the state or federal realm when such crimes are committed, the sentence
usually consists of a minimum of 5 years in prison. These contradicting punishments jeopardize
the protection of students that college institutions are supposed to ensure. The current legal
protocol administered by college institutions fail to ensure the safety of students, by neglecting to
effectively handle and report claims related to sexual assault.
Rape Culture and Victim Blaming
Majority of students who report these claims of assault are subjected to the idea of rape
culture and victim blaming by college administrators. This idea was coined by U.S feminists in
the 1970s to expose the increase in normalization of males through creating a setting in which
rape and any other form of sexual assault is pervasive and normalized due to societal attitudes
about gender and sexuality , also advocating for these acts through victim blaming (Danielson,
2013.)

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Victim blaming is the suggestion that victims are at fault in a situation involving sexual
assault. According to Lee, Caruso, Goins, & Southerland (2003), the victim blaming
phenomenon highlights certain characteristics of a victim that may be the cause of their assault.
These characteristics include; dress (tight clothing, revealing clothing, short clothing, etc.), and
different forms of flirting. These are both main reasons that assault claims fail to get properly
reported. Victims of campus assaults often get blamed for the assault and are discouraged from
going to the authorities to report it.
Educational Amendment Title IX 1972
The Educational Amendment Title IX of 1972 plays a key role in this issue. The
amendment serves as the foundation for the flaws of various institutions today.
Title IX 1972 History
Title IX of the Educational Amendments was signed by President Nixon on June 23rd,
1972. This law was meant to prohibit discrimination based on sex in any program or institution
that is federally funded. This includes colleges, universities, elementary schools, and secondary
schools. This would then eliminate the use of federal funds to support sex discrimination in
education programs, and provide protection against these practices for citizens involved with
these programs and institutions.
Title IX Supreme Court Foundation
The 1999 Supreme Court Case of Davis v. Monroe established precedent for the purpose
of the Educational Amendments Title IX.
In reference to Ricketts (2014), The question in the case was, Can a school board be held
responsible under Title IX of the Education Amendments of 1972, meant to secure equal access
of students to educational benefits and opportunities, for student-on-student harassment?
In this case Aurelia Davis sued the Monroe County Board of Education, on behalf of her
daughter LaShonda , a fifth grader, who suffered from constant sexual harassment by another
student. Davis claimed that due to the allowance of this assault without an effective resolution to
the problem, her daughter was being deprived of her educational benefits provided by Title IX of

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the Educational Amendment. The conclusion was determined through a 5-4 decision siding with
Davis.
The decision held that a school could be held accountable for any form of sexual
harassment between two students especially if the harassment hinders the students ability to
enjoy any educational benefits, which are granted through Title IX of the Education Amendment
of 1972 (Davis v. Monroe County Board of Education. (n.d.). Oyez).
Title IX Today
Under the current Educational Amendment Title IX, college campuses are entitled to
handle any claims of sexual assault at their respective institution. This means that whatever
punishment the college institution deems fit for the perpetrator stands. Therefore, the university
can choose to expel, suspend, or dismiss the claim against the student altogether.
This amendment is inadequate for this time period. The current amendment is being
abused constantly by institutions in effort to preserve the reputation and morale of the school.
With this amendment in place, countless victims of sexual assault on college campuses are being
ignored. Their cases rarely make it to any department higher than the campus polices. While this
is occurring, countless perpetrators are allowed to walk freely on the college campus, and if they
are held accountable, the punishments are often minute and hardly effective.
This goes to show that the amendment is full of loopholes that are creating an aversion to
the issue at hand. The amendment was installed in effort to protect the safety of those benefitting
from the institution, and this is not the case.
State Laws versus Campus Enforced Laws
State Laws
State law institutions have a very different protocol for handling sexual assault claims. From
a federal and state standpoint sexual assault is defined as, any crime in which the offender
subjects the victim to sexual touching that is unwanted and offensive. These crimes can range
from sexual groping or assault/battery, to attempted rape. (Mor, 2008) These crimes apply to

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spouses and couples respectively. However, every state varies in regards to the specific acts that
are categorized as sexual assault.
Virginia. In the state of Virginia, Virginia Code 18.2-61 defines sexual assault as,
If any person has sexual intercourse with a complaining witness, whether or not his or her
spouse, or causes a complaining witness, whether or not his or her spouse, to engage in
sexual intercourse with any other person and such act is accomplished (i) against the
complaining witness's will, by force, threat or intimidation of or against the complaining
witness or another person; or (ii) through the use of the complaining witness's mental
incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or
she shall be guilty of sexual assault and battery.
In reference to this crime the punishable sentence for violation of this law is a minimum of five
years in prison.
California. In the state of California, the California Penal Code 16.7-68 specifically
states, California's sexual assault laws prohibit unwanted touching of another person's
intimate parts, for the purpose of sexual gratification, sexual arousal, or sexual abuse and
when sexual assault leads to nonconsensual intercourse with the victim, it is charged as
rape.
In reference to this crime the punishable sentence for violation of this law is a minimum of four
years as well as a minimum fine of 2000 dollars.
College Enforced Laws
Although many laws are in the process of being passed and signed in effort to curb sexual
assault on college campuses, there is only one law that currently governs every educational
institution, Title IX. This amendment gives colleges the authority to punish the crime of sexual
assault however they see fit. In the college realm this means little to no punishment. The
universities are not only failing to report sexual assault claims but they are also failing to
properly discipline the perpetrators.

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College administrators rarely remove students from the campus when they are found
guilty of committing such heinous acts. They are usually suspended for a semester or two, rarely
ever expelled, and if they are an athlete they may not play in a couple of games, but generally
they are just given a warning (Dick, director, 2015).
This goes to show just how lenient college administrators are when it comes to enforcing
the rules. Since their governing law puts the power in their hands, they suppress the issue and
ignore effective punishment practices. Not only are the perpetrators allowed to freely roam the
campuses, but the victims are left with nothing. Their voices are silenced and their claims are
disregarded.
Comparison and Synopsis
By comparing the laws enforced in the state judicial system and the college institutions,
there is an undeniable gap. The protocol that is adhered to varies greatly. In the state realm the
law is clearly defined, therefore failure to comply with the laws set forth result in serious
consequences. Whereas, in the college realm when the law is broken little to nothing is done
about it. This comparison serves to show the apparent lag between state and educational
institutions. In addition it shows the overall consideration given to the victims in both sectors.
Case Law: Cases, Outcomes, and Importance
In order to analyze this issue it is essential to take a look at where this issue has proven
itself to be a recurring conflict. The cases that will be presented all serve as a representation of
how the current legal protocol administered by college institutions fail to effectively handle
claims of sexual assault. Each case provides some insight as to where improvements can be
made.
Florida State University
Florida State University is not just known for their dominating football team, but they are
also known for one of the most publicized campus sexual assault case. This case involved star
FSU football player, and NFL number one draft pick Jameis Winston and Tallahassee native
Erica Kinsman. On December 6th, 2012, Kinsman went to an FSU bar where Winston was also at

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whom she did not know at the time. He offered a drink and next thing she knew, she was in a
cab with him and two of his teammates.
Winston then took her to his apartment where he forcibly raped her, and his teammate
recorded the event. Winston then dropped her off on the side off a dorm building from where she
went to report the assault. She first went to the FSU campus police department who quickly
dismissed her claim and thought she was just intoxicated and would come back to her senses the
following morning.
The next morning she went to the Tallahassee police department (TPD) where she was
tested via rape kit and questioned in depth. When asked to identify her rapist, she could not
because she didnt know him at the time. Luckily as she was in class, Winston came in. The
teacher called his name which Kinsman then took back to the TPD. After the department found
out who the claim was she was given very controversial advice from Officer Angulo. This is a
huge football town. You really should think long and hard if you want to press charges (Payne,
2014). This didnt stop Kinsman; however, it took over 10 months for her charges to be further
processed. Winstons teammate later identified as Chris Casher was not questioned until
November 2013. By this time the video was erased and there was little evidence left. The results
from the rape kit still remained where the DNA matched that of Winston.
In November 2014 a disciplinary hearing was held. This was Winston first time being
interviewed about the claim and he refused to answer any questions. However, he chose to read a
five page statement which included the following defense, She willingly engaged in multiple
sexual acts with me with her full knowledge and consent. I did not rape or sexually assault
[Kinsman] (Luther, 2015).
In his defense he identified moaning as his interpretation of verbal and physical consent
to have sexual intercourse. After the disciplinary hearing, it was decided that Winston did not
break FSUs Student Code of Conduct. The claim was dismissed. Kinsman proceeded to file a

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counterclaim charging Winston with 17,000 dollars for causing permanent emotional distress.
That trial date for her counterclaim is set for May 2017.
Winston proceeded to play in the NFL as the number one draft pick and even received the
Heisman award in 2015. Erica Kinsman was forced to drop out of school since she was
constantly tormented in and outside of school. She still deals with daunting memories of her
encounter with Winston. After her story was featured on the CNN documentary, The Hunting
Ground, he provided this statement. I kind of just want to know, like, why me? It doesnt make
senseHe won the Heisman trophy with his DNA in a rape kit and I am the one being punished
(Payne, 2014).
Virginia Wesleyan College
In August of 2012, Virginia Wesleyan student, Jane Doe was forcibly raped and
sodomized by student athlete Zackery Kane after drinking a spiked beverage at a party her
freshman year. After the rape, she reported the act of sexual assault to the college campus who
proceeded to hold a hearing in 2013. Shortly into the campus hearing,it was determined that it
would be best to remove Kane from the institution (Jane Doe v. Virginia Wesleyan College v.
Robert Roe).
Doe proceeded to drop out of school in order to enroll in an in-patient treatment facility
to deal with the post-traumatic stress disorder, anxiety, and depression she endured as a result of
the assault. During her time in the facility, she was contacted by the college administrators to
inform her of their new decision in regards to the alleged assault. She was told that Kanes status
would be changed from expelled to voluntarily withdrawn in effort to help Kane in seeking
further studies. They felt it was essential for Kane to still be able to receive a good education and
participate in athletics, and they didnt want his accusation to hinder those opportunities. This
angered Doe and she knew she had to do something to prevent other girls form going through
what she went through (Jane Doe v. Virginia Wesleyan College v. Robert Roe).

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In the fall of 2014 Doe proceeded to file a ten million dollar lawsuit against the college
for its , negligence in its duty to prevent students from being sexually assaulted, fraudulent in
representing itself as a safe place for female students, and negligence in its response to sexual
assault (Jane Doe v. Virginia Wesleyan College v. Robert Roe).
The college responded to the lawsuit by claiming that though they feel bad for Doe, they
are not at all responsible for what happened to her on campus. In effort to get the lawsuit
dismissed, the defense counsel prompted Doe to recount any of her previous sexual encounters
and past relationships to determine if she really suffered from any physical or emotional trauma
as a result of the campus rape. This is a violation of Virginia Code which states that no previous
assaults or relationship other the assault that is being referred to in the present case. The lawsuit
is expected to go to trial in the spring of 2015 (Jane Doe v. Virginia Wesleyan College v. Robert
Roe).
.
Overview of Cases
The cases above illustrate an overarching theme. This theme is negligence on behalf of
the respective institution. Both cases are a result of college institutions refusing to take
responsibility in effort to preserve the credibility of the school. Due to this lack of care, students
are being victimized and ignored. If this trend continues, universities will be scrutinized for their
actions. Based on the cases above, there is an apparent issue in regards to disciplinary actions
against the perpetrators and the safety of students.
A look into the future: Current Action and Future Effects
Many states and organizations in our country have already taken action to help resolve
this issue. People all over the United States are advocating for victims of campus assaults.
Countless acts, laws, and programs have been developed in effort to inform the public of campus
assaults and provide an oasis for victims everywhere. This is a step in the right direction. With

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the current action hopefully, awareness will be spread throughout the country in effort to
eliminate the issue as a whole.
California yes means yes (defining sexual assault)
On September 28th, 2014, Governor Jerry Brown signed a bill into law, defining the
concept of consensual sexual intercourse. The main purpose of this law is to combat the alarming
statistics regarding claims of sexual assault that countless educational institutions have been
trying to keep private.
With this new law it is determined that consent cannot be made if a victim is intoxicated,
asleep, or physical impaired in any way. Consent must also be continuous and it can be removed
at any time during intercourse. The state of California is taking a stand against campus assault
and refuse to let this issue be ignored.
With this new law in action the hope is to re-implement the safety and protection that
colleges are expected to promote (Chappell, 2014).
E.R.O.C Organization (Ending Rape on Campus)
E.R.O.C is an organization whose mission is to end campus sexual assault, and promote
an educational journey free from any form of violence. E.R.O.C also strives to advocate for fair
judicial practices for victims on the local, state, and federal level (n.d).
Andrea Pino and Annie Clark are the founders of the EROC organization. While in
college they were both victims of sexual assault, and in both cases their claims were dismissed
by college administrators. After their unjust treatment, they decided that they would advocate for
sexual assault on college campus and speak out on institutional injustices. They have spoken at
many political events and are working towards protection laws for all college students, as well as
stricter campus enforcement policies.
Policy Reform. EROC constantly pushes for the improvement of policies in the college
and local realms. They have done so by encouraging connections between victims, and
establishing relationships between students and campus officers. There has also been a
development of local agencies and centers to assist the victims. Lastly EROC makes themselves

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available by providing colleges the opportunity to have EROC representatives speak to their
institution about these reforms and their organization as a whole.
State and Federal Legislation. In regards to state and federal legislation, EROC has
made tremendous progress in revamping laws such as the Cleary Act, and Campus
Accountability and Safety Act. These laws have been reported to states and federal legislatures in
order to promote the importance of consensual sex, documentation of sexual assault claim
reports, protection of all victims, and proper training of law enforcement officials.
White House 1 is 2 many and Not Alone Act Report
In January of 2014, with a combined effort of Joe Biden and Barack Obama the Not
Alone Act initiative was born. The White House Task Force developed a report which was
formed in order to advocate for the protection of college students against sexual assault on
campus. This report provided a start to what is soon to be signed into law.
The Not Alone Act itself has three main focal points that it seeks to promote; the first is
organization and formation of Prevention programs, in order to create an informative atmosphere
at each respective university, and provide students with strategies to stop the violence before it
starts. Secondly they seek to encourage effective response, which entails ensuring that colleges
are creating an environment, composed of human resources, that students are confident and
comfortable with coming to in regards to reporting assaults. In addition, they want those same
human resources, to assure the students that they are not alone and justice will be served. Lastly,
they are striving to increase awareness, this means that there will be no more alarming statistics.
Any information that can be disclosed will be disclosed. With the progression of the Not Alone
Act website, the goal is that the public will be able to access information about any claims or
reports of assault at every college university. (Not Alone, 2014, n.d.)
Although, the Not Alone Act is currently still in the developmental stage, it is a great
start to what will soon be a much needed solution. Through this report alone the public was made
aware of this backburner issue. The formation of the White House Task Force alone shows that

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this issue is serious, and lawmaking officials in the federal sector want to do something about it.
With the introduction of the Not Alone Act hopefully, colleges will be monitored more closely
in regards to their care and disciplinary actions in response to sexual assault reports.
Awareness Organizations in College
A few colleges have taken it into their own hands to solve this issue. Virginia Universities
Old Dominion University and Richmond University, just to name a few universities with this
specific program, have started Women Centers. These centers were developed in order to provide
on- campus support for students seeking help, or advice in regards to sexual assault. Though not
every college provides centers like these, many colleges provide prevention and awareness
orientations. These orientations are usually put on by campus guidance and police departments.
They set aside time to personally discuss the importance of campus safety and ways to report and
prevent violence on campus (Bidwell, 2014).
Conclusion
After an in depth analysis of Sexual assault on College campuses, it is easy to see that
there is room for improvement. Year after year college students are subjected to violence on
campus, while the administrators brush off reports as if it is not at all important. Under Title IX
of the Educational Amendment of 1972 educational institutions are supposed to protect its
beneficiaries. By disregarding claims of assaults, blaming the victims, and defending the
perpetrators they are enforcing just the opposite. These institutions are more concerned about
their school morale than their students. If sexual assault crimes continue to be justified in the
college realm they will continue to contradict laws set forth by state and federal lawmaking
bodies, ultimately compromising the integrity of the judicial system. However, with the help of
current organizations such as EROC, the White House Task Force, and the respective universities
we can find a solution to the problem. It is up to all of us to stop this epidemic and support each

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other in making amendments to the current policies in place. Through the promotion of
collectivism, college universities can once again be a serene oasis for all of its students.
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