Universities have responsibilities when students report sexual assault, even if prosecutors don’t bring charges. Attorney Baine Kerr explains how those protections work.
Transcript
ELISSA NADWORNY, HOST:
For more on this story, we called Baine Kerr. He’s a retired Title IX attorney who gained national attention for litigating precedent-setting civil rights and Title IX campus sexual assault lawsuits. I asked him, what does Title IX require of colleges and universities?
BAINE KERR: As soon as there is notice by a university, action must be taken, and that action requires investigation in coordination with law enforcement. If law enforcement – meaning any outside police authorities or prosecutors – is not taking action, the university’s obligations remain. And then hearings must be held, and disciplinary actions must be taken against wrongdoers who are determined through the hearing process to have committed sexual wrongs.
It’s a very comprehensive set of requirements, and universities are extremely well aware of it. I mean, there has to be, for example, an orientation for incoming freshmen about campus sexual assault. Title IX requires that. And every single incoming freshman has to attend that session designed to train in sexual assault prevention.
NADWORNY: Why hasn’t that done enough to change campus culture? Why is this still so rampant?
KERR: I think it’s a constant battle. You have a constant turnover on campuses, people leaving after four or fewer years, new people coming in and a constant need to educate, train and supervise. The use of drugs and alcohol to involuntarily incapacitate young women is rampant. Gang rapes, meaning two or more men, are very often the setup with these male cultures of initiation, like football, basketball, fraternities. Most of my cases were – involved gang rapes.
NADWORNY: Yeah, why these groups?
KERR: They often entail kind of rite of initiation or at least a semblance of that. Social status – sometimes that’s very explicit, as in the case I had against the University of Colorado, which was a recruiting program of the football team. Sexual conquest was part of showing that you’re eligible to go to the university.
NADWORNY: Wow.
KERR: And I think fraternities share that. Studies of hazing – initiation into the group is a critical transition, and tragically, younger and more naive women – they tend to be freshmen or sophomores – they can be really harmed and really unsafe.
NADWORNY: Yeah, I’ve seen some research that calls this the red zone – the first several weeks of campus in the fall.
KERR: Yeah, that’s exactly right.
NADWORNY: Is there a case where the men in the group chat could be named?
KERR: The group chat is going to be really important. The – another thing that is really common in these contexts, these gang rape contexts – which is goading, you know, the other…
NADWORNY: Bragging about the incident.
KERR: Bragging about it and really cheering on the participants – the great expose was Jodie Foster’s movie “The Accused” – and that was back in the 1980s – in which the gang rapists are cheering each other on. This chat group, the Snapchats, seemed to possibly occupy a similar sinister role. But I think that’s going t be really critical to the evidence in the investigation.
NADWORNY: Let’s talk about Jane Doe’s civil suit. What are the ranges of outcomes one could expect from that, separate from the criminal case?
KERR: Typically, the cases like those are settled because a reputational injury to the university potentially is so great. And typically, the settlement – in my cases, at least – has involved a number of nonmonetary changes that the university agrees to to make the campus safer for women.
NADWORNY: Can you give me an example of something that changed following a civil case that you won?
KERR: The two best examples would be University of Colorado and also Florida State University. There was a very high profile case that we had against Jameis Winston, the Heisman Trophy winning quarterback.
NADWORNY: Currently playing for the Giants.
KERR: Yes, right. And in both of those cases, significant reforms were part of the settlement package that the universities agreed to. In the CU case, the whole university, but especially the athletic department, made a whole book of concrete changes, interviewed every one of the 300 scholarship athletes about their experiences, and had oversight authority for three years over the athletic department. Colorado became a national leader in campus safety.
NADWORNY: It sounds like a civil case or a civil suit is an option when Title IX or when a criminal investigation fails.
KERR: Yes, certainly. And even if there is no criminal investigation or even if it succeeds, the civil suit may be brought, simultaneous (ph) or not.
NADWORNY: Baine Kerr, a retired lawyer who specializes in Title IX litigation. Thank you so much for being with us.
KERR: Thank you, Elissa. It was my pleasure.
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