A Therapeutic Jurisprudence Analysis of Government’s Directives on Student to Student Campus Rape
Journal of Law and Education
The cacophony is unnerving. Voices are rife with outrage. Strident demands come from every perspective and every constituency. The problem: student to student campus rape at U.S. colleges and universities, and the government's approach to that problem. Much attention is deservedly focused on the Department of Education's Office for Civil Rights' now rescinded Dear Colleague Letter of April 4, 2011, (the "DCL"),' together with the also rescinded Questions and Answers on Title IX and Sexual Violence, issued in 2014 during the Obama Administration (the "2014 Q&A"), versus the Department of Education's Office for Civil Rights' Letter dated September 22, 2017 rescinding the DCL and 2014 Q&A (the "Jackson Letter") and the Q&A on Campus Sexual Misconduct that was issued the same day (the "2017 Q&A"). The Jackson Letter indicated an intention to develop another approach through the rulemaking mechanism.' If the process is to be revised, how can it be improved? There is absolutely no justification for Person A to take sexual advantage of Person B. Rape and rapists are condemned almost universally by society. Thanks to student activism and media attention, the problem of student to student rape is being exposed. We are now embroiled in controversy over how U.S. colleges and universities should deal with reports of non-consensual sex. If there is to be an improved new approach to universities' responsibilities with respect to campus sexual misconduct, it is critical to analyze government's now rescinded approach under the DCL/2014 Q&A to identify and preserve its strengths, and to uncover and correct its shortcomings. Analysis should be performed under a variety of legal philosophies. In what may be the first formally acknowledged foray of therapeutic jurisprudence (sometimes referred to as "TJ") into higher education law, this article examines the investigation and hearing process prior to the rescission of the DCL/2014 Q&A, (the "DCL Approach") and the intersection of that process with criminal law. This article then goes on to discuss the next steps in designing an improved process. Therapeutic jurisprudence is a jurisprudential philosophy and analytic tool that examines the impact of law and legal processes on the emotional and related physical wellbeing of the persons affected by those laws and processes. The problem of student to student rape, and the Office for Civil Rights' ("OCR") processes for universities to respond, are both fraught with emotional and related physical impacts to the parties allegedly involved in such incidents, and to the entire university community. The issues produce emotional reaction and emotional reasoning. Therapeutic jurisprudence is well-suited to quiet the emotionality and allow rational step-by-step examination that does not banish human emotion from legal reasoning. It allows emotion to inform and enrich the analysis, without controlling it. The therapeutic jurisprudence analysis in this article reveals that, in most respects, the DCL Approach is refreshingly more therapeutic to survivor/complainants than many previous university practices that exacerbated survivors' suffering. It is not wholly free of antitherapeutic possibilities, but generally it is admirably consistent with current learning on how best to facilitate the recovery of survivors of sexual assault, particularly rape. With respect to those accused (respondents), therapeutic jurisprudence analysis reveals that the DCL Approach's preinvestigation, investigation and hearing process, although therapeutic in some respects, is highly antitherapeutic for respondents, disproportionately so, both in design and in actual application. The antitherapeutic impacts begin as soon as a report is received, even before an investigation is instituted. The most antitherapeutic impacts, among many for respondents, arise from a serious design flaw in the process: the failure to align with the realities of criminal law, thus creating an untenably antitherapeutic catch-22 for respondents. Neither these findings, nor therapeutic jurisprudence theory requires that therapeutic jurisprudence alone dictate the revisions to the process. Therapeutic jurisprudence theory holds that sometimes other conflicting norms can outweigh therapeutic/antitherapeutic concerns. It insists, however, that attention be paid to therapeutic versus antitherapeutic consequences to enable a more precise weighing of competing values to achieve optimal laws and legal processes. This article supplies the therapeutic jurisprudence analysis needed for such precise weighing so that the process can be refined accordingly. Fortunately, the problem of campus rape finally has come to the attention of the public, and universities recognize that they must forthrightly address the problem from both the moral and public image perspectives. There is a significant level of "buy in" at universities. The Jackson Letter and 2017 Q&A create opportunities for carefully designed refinements to be piloted.
Carol L. Zeiner, A Therapeutic Jurisprudence Analysis of Government's Directives on Student to Student Campus Rape, 47 J.L. & EDUC. 427 (2018).