Return to Disciplinary Procedures and Model Policies

Harvard Negotiation Law Review, Spring 2001

“Mediating University Sexual Assault Cases”

by Rajib Chanda

EXCERPT:

…Mediation is "a process through which two or more disputing parties negotiate a voluntary settlement with the help of a 'third party' (the mediator) who typically has no stake in the outcome." [FN171] The definition, notably, does not impose a "win-win" requirement, nor does it bar penalties. A party can "lose" or be penalized; mediation only requires that the loss or penalty is agreed to by both parties [FN172]--in a sexual assault case, "agreements . . . may include reconciliation, restitution for the victim, rehabilitation for whoever needs it, and the acceptance of responsibility by the offender." [FN173] In this section, I will examine how well this conception of mediation meets the goals for an effective dispute resolution process.

A. Deterrence
… Mediation is likely to be effective as a specific deterrent for three reasons. First, the process of mediation often focuses on ensuring that each party to the dispute understands the other party's needs and options. [FN174] Because mediation strives to avoid black and white categories such as guilt or innocence, parties are encouraged to understand why the other party sees the dispute in the way that she does. [FN175] This process can have a humanizing effect. Unlike in a dispute that is to be settled by a third party arbiter, the parties are not competing to convince someone that they are right. Rather, they are engaging with the other person and trying to fashion a mutually acceptable solution. Once an offender has seen the victim as a rational person who has been hurt by his actions instead of as a competitor, it seems less likely that he will act in such a way towards the victim, and perhaps others in similar situations, again. [FN176]

Second, the confidentiality of mediation allows admissions of fault or contribution without fear of an adverse verdict, as in a trial or university disciplinary procedure. [FN177] Many mediated results often include an apology, and in many more mediations, apology plays a crucial process role in allowing the parties to move forward and structure their future relationship. [FN178] The contrast of that from a trial is stark--in a trial, recognition of any blame is to be avoided at all costs, lest that be construed as an admission of guilt. Apology can aid deterrence because, when a person understands the reason why an apology is necessary, he is less likely to engage in such behavior in the future. [FN179]

Finally, mediation agreements can be tailored to best meet the parties' interests going forward. Litigation or university disciplinary procedures yield two possible outcomes: the offender will either be held responsible or he will not be. If it is the former, the deterrence vis-à-vis the particular victim will be very strong. The offender will either be put in jail or suspended or expelled from school. The two parties are not likely to encounter one another again. If the latter result occurs, however, the victim is fairly powerless. In a setting like a university, they are likely to see each other often. Even though an offender that has endured a trial or hearing is not likely to sexually assault the victim again, [FN180] harassing behavior may follow. By contrast, in a mediated agreement, the parties can structure their future relationship in such a way as to avoid both the specific crime and any harassing behavior, by him or his friends and supporters. For example, the parties can arrange ways to minimize future contact, or specifically provide for penalties in case of future harassment. [FN181] Thus, by allowing the victim to tailor the agreement in such a way that she feels is likely to avoid future misconduct, mediation provides for greater specific deterrence than either of the models currently used by universities in the sexual assault context. …

B. Education

For many of the same reasons described in the deterrence section, mediation is likely to be more effective at individual education than either of the current alternatives used by universities. First, because mediation often focuses on each party understanding the other's perspective and feelings, the offender is more likely to truly understand why the behavior was upsetting to the victim. When there are competing versions of the truth, as in a trial or disciplinary hearing, there is little, if any, incentive to try to understand the other person's story. In a mediation, on the other hand, demonstrating understanding can be an explicit goal of the process. [FN183] Thus, the offender is likely to understand more clearly the reason that his behavior was hurtful to the victim, and will be less likely to act in the same way in the future. [FN184]

Second, because mediation allows parties to accept that they contributed to the problem, without necessarily accepting blame or admitting guilt, an offender is more likely to understand why his behavior was unacceptable or hurtful to the victim. The individual offender may become more aware of the need for consent prior to sexual activity, for example. This individualized education, of course, comes at too high a cost--if there is a situation that needs mediation, it means that general education has failed, and a woman has been victimized. It is important to realize, however, that a significant interest of many victims is that the offender does not act in the same way in the future, with her or with others. [FN185]

Finally, because mediation agreements can be tailored to meet the parties' interests, if education is an important interest of the victim, the agreement can reflect that. That is, if the victim thinks that the offender must really learn how to deal with similar situations in the future, then the agreement can require community service or sexual assault awareness training, for example.

The inherently confidential nature of mediation, however, means that it is less successful at general education in addition to being less successful at general deterrence. More precisely, trials and disciplinary hearings are public affairs [FN186] and thus are more likely to inform the general public about the specific conduct at issue. …

C. Encouragement of victims to report incidents

… A mediation option for sexual assault victims addresses each of these concerns.

First, mediation greatly mitigates the social stigmatization fear because it is confidential. Second, because mediation is not usually adversarial, a victim who fears that prosecution will be too difficult can opt for mediation. Often, a prior relationship or ill-conceived behavior by the victim is taken as evidence that there was not a sexual assault. [FN188] Aside from the merits of such claims, it is undeniable that such evidence tends to undermine attempts to place legal guilt on an offender. Mediation, as opposed to trials or disciplinary hearings, is usually structured to avoid the issue of blame altogether. [FN189] This encourages victims to report incidents of sexual assault because not only will they not have to prove that the offender was responsible, they will also avoid being put on trial for their own behavior. [FN190]
Finally, because mediation agreements are voluntarily accepted by both parties, the victim can control the range of penalties that may be imposed on the offender. For the victim who does not wish to punish the offender "too severely," mediation is the process alternative that is more likely to encourage her to report the incident.

D. Avoidance of re-victimization of the victim

When one considers the type of trauma endured by victims of sexual assault, it is difficult to conceive of a dispute resolution process that can effectively avoid re-victimizing the victim. Certainly, the post-rape processes that will help a rape victim become a survivor are psychological ones, not dispute resolution processes. One must consider, then, what dispute resolution processes are least likely to re-victimize the victim.

… Mediation is a good deal more intimate than a trial or disciplinary hearing. Facing one's offender at such proximity may be more traumatic than testifying. However, because mediation can be tailored to meet the parties' interests, the process can be designed to minimize this trauma. A mediator can start the process by "shuttle diplomacy," or even conduct the entire mediation through that process. A mediator can help a victim prepare her remarks through facilitation, so that she does not feel powerless in the face of the offender. The mediator may facilitate the whole discussion and focus on disputes that do not implicate the trauma (i.e., how the two will pick classes so as not to be in the same ones). Thus, mediation offers the most flexibility to minimize re- victimization.

In sum, mediation is often a superior process option to criminal prosecution or university disciplinary hearings for resolving university sexual assault cases. It is more effective at specific deterrence and individual education, although it may be less effective at general deterrence and education. A mediation option is also likely to encourage more victims to report incidents of sexual assault, and its flexibility can minimize the re- victimization of those victims in a way the current alternatives cannot.

Notes

[FN170]. Interview with Sexual Assault Survivor 2, Brown University Undergraduate, in Cambridge, MA (Mar. 21, 1999).
[FN171]. See Rogers & Salem, supra note 24.
[FN172]. Of course, if mediation were the only alternative for settling such cases, the incentive to voluntarily agree to a loss or penalty would be lessened. The existence of the options described in Section V, supra, (criminal prosecution and university disciplinary procedures) give incentives to parties to avoid the outcomes that are associated with the alternatives to agreement. See generally Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950, 968-69 (1990) (negotiations are influenced by the "shadow of the law" under which they are bargaining).
[FN173]. Goolsby, supra note 20, at 1200.
[FN174]. See generally Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition 274- 75 (1994).
[FN175]. Goolsby argues that the criminal justice system
provides no opportunity for a rapist to see his victim as a human being ... [In mediation, on the other hand,] [b]y disclosing their viewpoints and needs to each other under the guidance of the mediator, the parties can educate each other about each other's needs and viewpoints in an atmosphere that does not emphasize right and wrong or winning and losing.
Goolsby, supra note 20, at 1197, 1200.
[FN176]. It is also possible that the offender's behavior will be altered with respect to all potential victims. This is because the transformative power of mediation may allow him to view all women in the same way. See generally Baruch Bush & Folger, supra note 174.
[FN177]. But see infra Section VII.C.3 (discussing state law limits on mediation confidentiality).
[FN178]. See Cohen, supra note 59. But see Deborah L. Levi, The Role of Apology in Mediation, 72 N.Y.U. L. Rev. 1165, 1168 (1997) (arguing that while apology may improve the dispute resolution process for some, a "simple 'sorry' will not always save parties time and money, or mend relationships").
[FN179]. See Baruch Bush & Folger, supra note 174, at 29 (arguing that mediation can improve individuals).
[FN180]. The assumption, perhaps erroneous, is that there is sufficient specific deterrence in being accused of a crime that will prevent an offender from committing the same crime against the same victim again. But see Warshaw, supra note 2, at 63 (reporting that 42 percent of rape victims in the Ms. study had sex with the rapist again after the rape).
[FN181]. But cf. Lisa G. Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 Harv. Women's L.J. 57, 84 (1984) (arguing that focusing on "subsidiary problems" disadvantages women by ignoring the fact of the violence committed against them).
[FN182]. See generally Fiss, supra note 74, and infra Section VII.A, note 195.
[FN183]. The ability to demonstrate understanding without necessarily agreeing has been identified as one of the major skills in negotiation. See generally Robert H. Mnookin et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (2000).
[FN184]. There are likely to be valuable educational benefits for the victim as well. While one rightfully hesitates before placing blame on the victim of a sexual assault, a victim may understand that her behavior contributed to the problem. For example, in the account described in the Prologue, Sara could see that, while Adam did not have an excuse for his behavior, her drinking excessively contributed to the problem to some meaningful extent. See generally Warshaw, supra note 2, at 151-60 (describing how women can help prevent and protect themselves from acquaintance rape).
[FN185]. I spoke to a victim who was sexually assaulted by a close friend. She said, "I know he's a good person .... If he could just see how he hurt me, he'd get it, I'm sure." Interview with Sexual Assault Survivor 3, Harvard University Undergraduate, in Cambridge, MA (Nov. 8, 1999).
[FN186]. The results of disciplinary hearings are public, at least.
[FN187]. Estrich, supra note 67.
[FN188]. See LaFree, supra note 114.
[FN189]. See Michael J. Yelnosky, Title VII, Mediation, and Collective Action, 1999 U. Ill. L. Rev. 583, 606 (discussing objections to mediation based on the fact that it avoids apportioning blame).
[FN190]. This latter point is discussed more in Section VI.D, infra, in which I analyze how well mediation meets the goal of avoiding punishing the victims twice.

Excerpts from “Where’s The Penalty Flag? A Call for the NCAA To Promulgate An Eligibility Rule Revoking A Male Student-Athlete’s Eligibility To Participate In Intercollegiate Athletics For Committing Violent Acts Against Women”

Women's Rights Law Reporter Fall/Winter 1999 by Deborah Reed

We have student-athletes who are perpetrators and who are rapists. [FN1]

Apparently, if the threats and beatings are administered by someone with a special athletic talent, someone whose quickness and strength and mentality make him a favorite to win an NCAA championship, somehow we're supposed to be more tolerant of his offenses. [FN2]

The increasing number of violent acts [FN3] committed by male student- athletes against women has reached epidemic proportions. This phenomenon is evidenced by countless newspaper accounts depicting the violence perpetrated by male student-athletes against women on university campuses across the country. [FN4] This violent epidemic becomes more problematic when the male student-athletes accused of such violent acts are still allowed to represent their universities on the playing fields.

The female victims are further violated when universities fail to discipline the male student-athletes for their violent crimes and allow them to play. It is demeaning for a victim to watch hundreds of fans cheer her attacker as he makes the winning touchdown or basket. As shocking as this notion is, it happens all too often. As Jeff Benedict, author of Public Heroes, Private Felons, stated in an interview with Dateline, "There is a trend of minimizing the seriousness of this kind of behavior when it involves student-athletes." [FN5] For example, the University of Tennessee did not take any disciplinary action when basketball point guard Tony Harris was charged with simple domestic assault of his girlfriend. [FN6] At Louisiana State, baseball player Bryan Grace was suspended from the team in May after he was charged with simple battery for hitting his girlfriend, but was later reinstated to the team. [FN7] University of Iowa defensive back Eric Thigpen was suspended for assaulting his girlfriend, but was reinstated to the team pending adjudication of the case. [FN8] The 1994 occurrences at Nebraska State further illustrate the problem. Football player Christian Peter pled no contest to sexual assault, but was not disciplined by the university and was allowed to remain on the team. [FN9] His fellow teammate, Lawrence Phillips, was initially suspended from the team for brutally beating his girlfriend, but was reinstated after six games when he pled no contest to the charge. [FN10] Another teammate, Damon Benning, was arrested for assaulting his girlfriend, but was not disciplined and was allowed to remain on the team. [FN11]

These are just a few of the many reported accounts found in the newspapers. The newspaper accounts demonstrate that a serious problem exists on university campuses across the country. It should be noted that the accounts in the newspapers only represent the cases that were reported to the police or media. A study of campus police reports and internal judicial affairs from thirty NCAA Division I schools found that, in general, crimes against women are not likely to be reported to the police or media, especially if the attacker is an athlete. [FN12] Therefore, the incidence of male student-athletes committing violent acts against women may be more widespread than demonstrated by the newspaper accounts.

The incidence of male student-athletes committing violent acts against women has become so widespread and prevalent that Representatives Bernie Sanders and Constance Morella introduced a resolution calling for a national summit on violence and student-athletes before the House Education Panel. [FN13] Representative Morella stated, "[T]here is no doubt that we have major problems on our college campuses and when school officials handle incidents of sexual assault by slapping perpetrators on the wrist or by denying the incidents ever occur, we are perpetuating the problem." [FN14] Representative Bernie Sanders stated that there should be a national message that "rough and tumble, hard-nosed physical competition stops when athletes leave the playing arena and that there is absolutely no excuse for domestic violence or sexual assault in any walk of American life." [FN15] This resolution demonstrates that a national response to the growing epidemic of male student-athletes committing violent acts against women is needed.

Currently, the National Collegiate Athletic Association (NCAA) [FN16] does not have a policy for revoking a male student-athlete's eligibility for committing violent acts against women. The NCAA does not give any guidance to its member institutions about how to deal with male student-athletes who commit violent acts against women. [FN17] The decision to discipline student- athletes is left up to the individual universities. However, the NCAA is the most powerful organization in intercollegiate athletics. [FN18] Thus, the NCAA is the proper authority to take strict action to combat the increasing number of violent acts committed by male student-athletes against women. NCAA legislation revoking a male student-athlete's eligibility to compete in intercollegiate athletics for committing violent acts against women is the appropriate and needed solution to this growing problem. …

The best course of action is for the NCAA to promulgate an eligibility rule dealing specifically with male student-athletes who commit violent acts against women. It is time for the NCAA to adopt national legislation to combat the increasing number of male student-athletes who commit violent acts against women. [FN19] Richard Lapchick, director of the National Consortium for Academics and Sports stated, "just as we have developed policies for substance abuse, we must do the same for gender violence." [FN20]

The eligibility rule should be similar to the following: a male student-athlete is ineligible to play in any intercollegiate athletic competition if he has been charged with a violent act [FN21] against a woman. If this rule were promulgated, a male student-athlete who committed a violent act against a women would be ineligible to play, and the university would be sanctioned if it allowed him to play. The NCAA "must demonstrate that college athletics has zero tolerance for men who are violent against women." [FN22] This rule is similar to the nonbinding resolution passed by the National Consortium for Academics and Sports that states, "any athlete convicted of rape, sexual assault, or battering should be banned from intercollegiate competition for at least one year at the member institution in which he . . . is enrolled." [FN23] The proposed rule is the proper national response needed to combat the problem and bring consistency to sanctioning to insure that male student-athletes who commit violent acts against women are disciplined and not allowed to play.

Enforcement of the rule would be similar to enforcement of the NCAA's other eligibility rules. Upon charges being filed against a male student-athlete for committing a violent act against a woman, the university would suspend him from competing in intercollegiate athletics because he would be ineligible to play under the NCAA rule. The new eligibility rule would apply when criminal or university charges were filed against a male student-athlete for committing a violent act against a woman. The student-athlete's eligibility would be reinstated if the charges were dismissed by the victim. The determination that a male student-athlete is ineligible to play under the rule can be appealed to the NCAA. [FN24]

If the university did not comply with the rule and a complaint was filed, the NCAA would conduct an inquiry into the allegation. [FN25] The university under investigation would be given notice of the charge and an opportunity to appear before the Committee on Infractions. [FN26] To avoid the possibility of being harshly sanctioned by the NCAA for failing to follow its regulations, it is in the university's best interest to revoke a male student athlete's eligibility in compliance with the NCAA rule. [FN27] The university is allowed to appeal the NCAA's determination. [FN28] At each stage of the process, the male student-athlete is protected from having his eligibility mistakenly revoked by procedural safeguards. These safeguards include the right to legal counsel, the right to interview witnesses, a four-year statute of limitations on violations, and the burden is on the NCAA to prove the allegations. [FN29] …

The possibility that universities will be sanctioned for not abiding by the proposed eligibility rule creates a strong incentive for them to police their male student-athletes actively to prevent violent misconduct. The NCAA should act as a check to insure that universities discipline their male student- athletes for committing violent crimes against women. This practice will have a deterrent effect because of the uniformity of punishment. Male student- athletes will know that they cannot get away with such violent behavior against women and that their coaches are powerless to protect them.

Allowing male student-athletes who have committed violent acts against women to go unpunished and represent their universities on the playing fields has a detrimental effect on the female victims, the student-athletes, the athletics community, the NCAA, and society in general. Placing student- athletes on a pedestal and allowing them to get away with such violent behavior only perpetuates the problem. To deal effectively with the widespread national problem of male student-athletes committing violent acts against women, the sanctions must be consistent and uniform. The incidence of violence committed against women by male student-athletes is a national problem and thus a national solution is needed. As the most powerful association in college sports, the NCAA is the proper authority to promulgate the needed national solution. Thus the NCAA should use its authority to promulgate the proposed eligibility rule revoking a male student-athlete's eligibility for committing violent acts against women.

Notes:

[FN1]. Bill Brubaker, NCAA Intensifying Effort to Educate Athletes on Issues of Sexual Responsibility, Wash. Post, Nov. 24, 1994, at A24 (quoting Emily Ward, an NCAA educational program coordinator).
[FN2]. Lori Shontz, Nebraska Still Hasn't Learned Lesson, The Topeka Capital- Journal, Apr. 23, 1999, available in 1999 WL 15726874.
[FN3]. For the purposes of this Note, the term "violent acts" refers to crimes such as rape, sexual assault, assault (simple and aggravated), battery, and domestic violence.
[FN4]. The University of North Carolina suspended offensive lineman Jon Hall after he was accused of two counts of misdemeanor assault of his girlfriend. See Steve Elling, UNC's 'Clean' Image Takes a Hit as Athletes Add to Legal Scorecard, News & Observer, Sept. 17, 1998, at A1, available in 1998 WL 6155571. After Louisiana State defensive back Clarence LeBlanc was charged with simple battery for shoving a coed several times in March, he was suspended from the team but was later reinstated after the charges were dropped. See Ladka Bauerova, et al., Special Report: Colleges Confront Athlete's Crimes, USA Today, Sept. 18, 1998, at 20C. Florida State suspended wide receiver Laveranues Coles from the season opener because he was charged with simple battery for allegedly striking his stepmother. See id.
[FN5]. Dateline: All the Right Moves (NBC television broadcast, Jan. 5, 1999)[hereinafter Dateline].
[FN6]. See Bauerova, et al., supra note 4.
[FN7]. See id.
[FN8]. See Steve Wieberg, More Schools Laying Down the Law, Usa Today, September 18, 1998, at 17C.
[FN9]. See Jeff Benedict, Public Heroes, Private Felons: Athletes and Crimes Against Women 122-23 (1997). Christian Peter was sentenced to 18 months probation. See Michael Farber, Coach and Jury, Sports Illustrated, Sept. 25, 1995, at 31. He currently plays for the New York Giants. See Dateline, supra note 5.
[FN10]. See Benedict, supra note 9, at 128. Lawrence Phillips was sentenced to one year of probation. See Maryann Hudson, From Box Scores to the Police Blotter, LA Times, Dec. 27, 1995, at A1.
[FN11]. See Benedict, supra note 9, at 129.
[FN12]. See Todd W. Crosset, Male Student Athletes Reported for Sexual Assault: A Survey of Campus Police Dept. and Judicial Affairs Offices, 19 J. Sport & Soc. Issues, May 1996, at 126.
[FN13]. See John Hanchette, Reporting On-Campus Crime a Problem, House Panel Told, The Detroit News, July 18, 1997, at A6; see also 143 Cong. Rec. E1095 (daily ed. June 3, 1997) (statement of Rep. Sanders) [hereinafter Debate].
[FN14]. Debade, supra note 13.
[FN15]. Id.
[FN16]. The NCAA consists of more than 1,200 institutions, conferences, and organizations. See About the NCAA (visited Mar. 21, 1999) <http:// www.ncaa.org/about/>.
[FN17]. See Wieberg, supra note 8; see also Michelle Cole, Expert Says Get Tough on Athletes, The Idaho Statesman, Sept. 17, 1995, at 1A. The NCAA also does not have a policy dealing with student-athletes who commit other crimes off-the-field. See Daniel Golden, College Sports/Out of Bounds: When College Athletes Misbehave, Often There's Only Token Punishment; It's a Crime, Boston Globe, Sept. 11, 1995, at 39. "If a school wanted to start a convicted murderer at quarterback, the NCAA rules would not prevent it." Id.
[FN18]. See Christopher L. Chin, Comment, Illegal Procedures: The NCAA's Unlawful Restraint of the Student-Athlete, 26 Loy. L.A. L. Rev. 1213, 1222 (1993).

[FN19]. The natural extension of this argument is for the NCAA to legislate in regard to violent off-the-field conduct against men and other nonviolent off-the-field conduct, however, these issues are beyond the scope of this Note.
[FN20]. Group Stands Against Violence, The NCAA News: Briefly in the News (Dec. 2, 1996) <http://www.ncaa.org/briefly.html>. The purpose of the National Consortium for Academics and Sports is to use the power of sports to effectuate social change. See National Consortium for Academics and Sports (last modified Aug. 24, 1998) <http://www.drexel.edu/ncas/mission.html>.
[FN21]. The term "violent act" would include rape, sexual assault, assault, battery, and domestic violence.
[FN22]. Group Stands Against Violence, supra note 20.
[FN23]. Id.
[FN24]. See The National Collegiate Athletic Association, 1997-1998 NCAA Division I Manual art. 14.12.1, at 163 (1997) [hereinafter Manual].
[FN25]. See id. art. 32.2, at 425. The NCAA receives information about rule violations from many different sources. Information comes from fans, opposing coaches, and student-athletes. See Greg Heller, Preparing For the Storm: The Representation of a University Accused of Violating NCAA Regulations, 7 Marq. Sports L. J. 295, 302 (1996). Also, with the increased media attention given to student-athletes who commit crimes, it seems unlikely that the NCAA would not be informed if a student-athlete who committed a violent act against a woman was allowed to play.
[FN26]. See Manual, supra note 24, art.19.5.1, at 324.
[FN27]. See id. art. 19.6, at 324-25. "The reputation and integrity of an institution, in addition to potential revenues that may be earned, are at risk when a school is under investigation by the NCAA." Heller, supra note 25, at 295.
[FN28]. See Manual, supra note 24, art. 19.7.4, at 329. See generally, Kenneth J. Martin, The NCAA Infractions Appeals Committee: Procedure, Precedent and Penalties, 9 Seton Hall J. Sport L. 123, 145-51 (1999) (discussing the procedure used to appeal to the NCAA Infractions Appeals Committee).
[FN29]. See Manual, supra note 24, art. 32, at 425-433; see also John Kitchin, The NCAA and Due Process, 5 Kan. J.L. & Pub. Pol'y (No.3) 71, 73 (1995-1996)

“Sex, Rape, and Shame” by Katharine K. Baker

Boston University Law Review June, 1999

In relatively close-knit communities, like college campuses, in which prestige and esteem play a critical role in people's daily lives, [FN195] we may be able to use alternative sanctions as a way of de-coupling sexual conquest from masculinity.

Suppose, for instance, that if a college tribunal or administrative body found that someone had committed date rape, he did not go to jail or leave campus for a semester or two. Instead, the perpetrator stayed on campus and for a period of time, a semester or a year, and was required to wear a bright orange armband or badge that was unmistakably associated with his sanction. His insignia would have to list his group associations, fraternity letters, sports team--all the affiliations that are normally listed beneath one's name in a college yearbook--so that he was bringing shame not only to himself but to his peer group. His picture, with his badge prominently displayed, should be published on a monthly or weekly basis in the school newspaper. He should also be barred from partaking in any extracurricular activities, sports teams, clubs, and fraternity organizations, through which students usually garner the esteem of their colleagues. The university could also forbid him to consume alcohol, a proscription that they could enforce through unannounced (and demeaning) urine tests. [FN196] While he was being sanctioned, the date rapist would be in the community without being able to be an active part of it. For this period of time he would be stripped of all of the traditional means of acquiring masculine esteem. After completing his sentence, however, his penance would be over and he should be allowed to re-integrate himself into the community. [FN197] Some re-integration is crucial. If the punished one loses hope of being able to rejoin the community, he will simply leave and join a subculture that accepts his behavior. [FN198]

Apologies could also play an important role in sanctioning date rapists. For instance, the date rapist could be required to publicly apologize and acknowledge his weakness. [FN199] Similarly, he could be required to explain publicly, in classrooms perhaps, what he did, why he did it, and how he now sees it as wrong. The perpetrator would not have to admit criminal wrongdoing, but he would have to admit wrongdoing. [FN200] The class would not be allowed to jeer; they would have to listen, but he would have to explain why he was sorry. The rapist should have to acknowledge publicly that his behavior was morally wrong and worthy of scorn. [FN201] He might also be asked to deliver to his victim, every day or every week, reparations of some kind. This act would force the rapist to focus on what all too many of these men fail to see, namely, the person who is hurt when they selfishly use sex to enhance their own esteem.

Controlled efforts like this to shape social norms and change social meaning have worked in the past. Consider the following examples. In the eighteenth and nineteenth century, dueling--the act of retiring to a field and firing pistols at each other--was an important means of satisfying social insults between members of the elite classes. [FN202] If one felt insulted, one challenged someone to a duel, and if one was challenged to a duel, one was compelled to fight or his honor would be damaged in the community. State governments were not particularly fond of this means of dispute resolution because it was remarkably arbitrary and left a considerable number of otherwise quite useful people dead. States tried to curtail the practice in a number of ways, including various unsuccessful attempts to simply outlaw dueling. Apparently, this strategy did not work because gentlemen placed the importance of their social honor above the importance of obeying the law. An anti-dueling strategy that arguably worked better was to forbid anyone who dueled from demonstrating their honor through another well-established practice, holding public office. [FN203] This alternative sanction was effective because it directly addressed that which gave men the need, or incentive, to duel in the first place, i.e., their honor. [FN204] By refusing to duel, gentlemen could argue that they were behaving honorably by maintaining their ability to hold office, not dishonorably by "wimping" out of the duel. …

Consider a second example. The smoking rate among African-American teenagers decreased substantially in the 1980s, while the smoking rate among white teenagers stayed relatively constant. [FN211] Researchers attribute this racial difference to a private antismoking campaign in the African-American community, which, instead of focusing on the health effects of smoking, tapped into an anti-white establishment norm common among African-American youth. [FN212] Among the most graphic symbols of this effort was a poster of a skeleton lighting a cigarette for an African-American child with a caption that read "They used to make us pick it. Now they make us smoke it." [FN213] With the introduction of the private campaign, smoking in the African-American community became a sign of selling out to the white establishment and letting down one's peer group.

The same strategy could work with rape. Any reform effort must consider the receptivity of the targeted audience. If the cultural resistance to a tying strategy is strong enough, the legal strategy of tying may backfire. Just as we may not be able to curb, and indeed may exacerbate, the problem of teenage smoking by telling young people that smoking may be harmful to their health, [FN214] so we may not be able to curb date rape simply by telling people that date rape is real rape. Lighting up a cigarette used to signify defiance and maturity and bravado. It may still do that for African- American youth, but, after the successful ad campaign, lighting up can also signify disloyalty and weakness. [FN215] The social meaning of date rape could be similarly ambiguated. If, by taking sex without consent a man subjects his peers to the scorn of the community and risks the very bond that gives him such a distorted incentive to have sex, he may very well not incur the risks of taking it.

The last example involves drunk driving. Formerly, driving home after too many beers was seen as a macho and appropriate thing to do. [FN216] One certainly did not ask someone else to drive or leave one's car and take a cab. Indeed, among men, asking someone else to drive home would have been very emasculating. Drunk people may have believed that they were doing something wrong by driving drunk, but that wrong was merely a violation of a technical rule for which the police could pull them over. The technical wrong had no meaningful purpose or consequence. Mothers Against Drunk Driving and similar groups [FN217] began to alter people's drinking and driving behavior patterns [FN218] by changing the crime of drunk driving from an essentially victimless act of bravado, to an act with potentially deadly consequences for very real victims.

Date rape, in the eyes of many date rapists and in the eyes of many jurors, is also still seen as a victimless crime. Thus, date rapists view themselves and are viewed by others as technical criminals, but not real criminals. [FN219] If these men were forced to apologize for what they did, if they were forced to articulate how rape carelessly used women, they might begin to think twice about their actions, just as most people now think twice before having another beer when they have to drive home. Apologizing forces people to admit their wrongdoing in a way that criminal punishments often do not. It also forces people to appreciate the consequence of their actions and focus on whether the consequences are worth it.

The nontraditional nature of these sanctions should not be viewed as calls for mercy or attempts to impose mandatory mediation. [FN220] Mercy involves mitigating a punishment that is otherwise deserved [FN221] or meting out a punishment that is less than retribution or deterrence requires. [FN222] Mercy has its place, but the public display and apology alternatives suggested here will not be particularly merciful. They will not "season justice" as mercy does. [FN223] They will do justice by clearly negating whatever benefit the rapist gained from his act. [FN224] … Experts who study date rape and work with college age populations agree on the paramount need to sever sexually predatory behavior from notions of masculinity. [FN226] The proposed sanctions try to do just that. Nonetheless, we must be careful in our attempts to manipulate notions of masculinity, lest we legitimate the status system that our culture already reads into gender. [FN227] The most effective way to emasculate a perpetrator would probably be to make him expressly female--to make him wear women's lingerie or clothing. Yet punishing someone by feminizing him in this manner would trade on the misogynistic messages in our system of gender. [FN228] For most people concerned with rape reform, this is an unequivocally unacceptable message for any punishment to send. Emasculation must therefore be achieved more indirectly. The sanctions suggested here emasculate indirectly by temporarily prohibiting men from displaying the masculine qualities of independence, pride, control and righteousness and requiring them to acknowledge publicly their dependence, humility, limitation and wrongdoing. The key is to make date rapists feel sorry for what they did and make others uninterested in emulating their behavior. …

When we publicly shame a date rapist, we are not forcing him to relinquish any privacy that he has not already forced his victim to relinquish. The sexual nature of rape means that any investigation and prosecution of the crime will inevitably require its victim to open the privacy barrier behind which she usually keeps her sexual experiences. Making sexual experiences public may be per se demeaning, and to a certain extent, base, but this is a form of embarrassment and baseness with which rape victims have always had to live. If a rapist is to be punished, his victim must be willing to sacrifice her privacy. Many women resist coming forward with rape allegations precisely because it makes public that which, however horrible, is nonetheless very private. Therefore, it is wholly appropriate that her perpetrator be put through comparable public scrutiny. Making rapists feel a parallel sense of embarrassment encourages rapists to empathize with the humiliating public experience they have forced upon their victims.

[FN195]. Toni Massaro argues that America is too big and diverse a society for shaming to work because one can only feel shamed in interdependent communities in which the shamed person wants and needs the respect of others. See Toni Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1923 (1991) [hereinafter Massaro, Shame]. "American subculturalism, or cultural pluralism, is pronounced enough to make broad conclusions about our moral coherence suspect ...." Id. College campuses are much more physically, culturally and morally coherent than is American culture generally, however. People on college campuses know each other well. They often work, play and live with each other. The richness of one's experience on that campus has a great deal to do with whether one has the respect and friendship of the community as a whole.
[FN196]. I am grateful to Richard McAdams for this suggestion. As he pointed out to me, in addition to subjecting men to embarrassing tests, this sanction also deters date rape by deterring drinking (for the correlation between drinking and date rape, see supra notes 94-100) and it pits one means of proving masculinity--drinking--against another--sex. This provides men with a masculine reason not to date rape.
[FN197]. Both Toni Massaro, see The Meanings of Shame: Implications for Legal Reform, 3 Psychol. Pub. Pol. & Law 645, 693 (1997) [hereinafter Massaro, Meanings] (cautioning that shaming "may lack any redemptive, dues-paid end point"), and John Brathwaite, see Brathwaite, supra note 84, at 74, note the importance of a temporally limited sanction.
[FN198]. The offender who is not re-integrated "may 'drift' toward subcultures that are more accepting of her particular norm violation." Massaro, Shame, supra note 195, at 1919; see also Brathwaite, supra note 84, at 65-68.
Of course, many men may choose to leave rather than undergo the demeaning sanctions suggested here. If that happens, the university community loses the opportunity for public education but it is no worse off that it is now, when rapists are suspended or expelled. Moreover, a convicted rapist who decides to leave rather than be humbled is at least forced to take some responsibility for his actions. He is forced to balance his need for esteem against his desire to continue with his education. That balancing process in and of itself may help young men think more closely about the legitimacy of status systems that they now uncritically accept.
[FN199]. The victims' names could still be kept confidential. One can apologize for an action without naming the parties to the action. If the victim wishes to remain anonymous, she should be able to do so.
[FN200]. A defendant who refuses to testify, is found guilty, and still refuses to acknowledge wrongdoing should be expelled. However, a defendant who acknowledges wrongdoing and subsequently finds himself the subject of a criminal trial should be able to exclude from the criminal trial any previous exculpatory statements made under the threat of expulsion. The two federal courts that have encountered this issue, Hart v. Ferris State College, 557 F. Supp. 1379, 1384-85 (W.D. Mich. 1983) (finding that a student had a right to remain silent during a disciplinary hearing); Furutani v. Ewigleben, 297 F. Supp. 1163, 1165 (N.D. Cal. 1969) (same) and the one state court, Nzuve v. Castleton State College, 335 A.2d 321, 325-26 (Vt. 1975) (same), have followed Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (protecting individuals against coerced statements by punishing their use in subsequent criminal proceedings) to find that testimony given in a college administrative hearing under the threat of suspension or expulsion for failure to testify is not voluntary and is therefore inadmissible in a subsequent criminal proceeding. In Garrity, two police officers were told that they would be fired if they invoked the Fifth Amendment during a Grand Jury proceeding investigating police corruption. See 385 U.S. at 495 ("[T]heir statements were coerced, by reason of the fact that, if they refused to answer, they could lose their positions with the police department."). The Supreme Court held that under those circumstances, the officers' testimony could not be construed as a waiver of their right against self-incrimination, and therefore could not be used against them in a subsequent trial. See id. at 498-500. It is unlikely that this analysis would be different for private schools because they too are required by federal law to provide "sanctions to be imposed following the final determination of an on-campus disciplinary procedure regarding rape, acquaintance rape, or other sex offenses," see Higher Education Amendments of 1992 (amending federal law), 20 U.S.C. § 1092(f)(7)(B)(ii) (1994) (requiring information on "possible sanctions to be imposed following the final determination of an on-campus disciplinary procedure regarding rape, acquaintance rape, or other sex offenses, forcible or nonforcible").
[FN201]. In a recent Note, Paul Rosenthal argues that due process requires public universities not to construe silence on the part of a defendant as an admission of guilt. See Rosenthal, supra note 179, at 1271-86 (arguing for the application of the privilege against self-incrimination in college disciplinary hearings). However persuasive this argument for expanded due process rights may be, it is not likely to afford a public school defendant significantly more protection given the less rigid standards of proof, relaxed rules of evidence and majority rule procedures that govern most university hearings. See Parrot, supra note 173, at 369 (concluding that judicial board hearings employ less rigid standards of proof and more flexible evidentiary rules than criminal proceedings). If an accused man remains silent, it is quite likely that the defendant will be convicted, even if his silence cannot be construed against him. Without his testimony, the preponderance of the evidence will probably weigh against him. As long as the courts and Congress continue to allow universities to discipline students for non-academic activity, students should not expect the procedural protections afforded in criminal courts. See Lisa L. Swem, Note, Due Process Rights in Student Disciplinary Matters, 14 J.C. & U.L. (1987).
[FN202]. I take this first example and much of the following analysis from Lessig's work on social meaning. See Lessig, supra note 9, at 968; Lawrence Lessig, Social Meaning and Social Norms, 144 U. Pa. L. Rev. 2181, 2187 (1997).
[FN203]. See Lessig, supra note 9, at 971 (suggesting that banning an individual from participating in public office was a more effective method of regulation).
[FN204]. See id. (asserting that such a sanction created "an elite-based reason for refusing the challenge of a duel"). It is hard to determine exactly how effective this anti-dueling device was because legislatures tended to grandfather past duels out of the bar on public office and they often repassed grandfathering legislation every few years. See id. at 972.
[FN211]. See Michelle Ingrassi, Waiting to Exhale, Newsweek, May 1, 1995, at 76. Cass Sunstein first brought this example into the legal scholarship on norms. See Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 905-06 (1996).
[FN212]. See Ingrassi, supra note 211, at 76.
[FN213]. Id.
[FN214]. Focusing on adverse health effects of a certain behavior is likely to be a particularly ineffective means of altering the behavior of youth. Most young people suffer from serious delusions of immortality. Young people do not think that they are going to die and they are notorious for engaging in extremely high-risk behavior. Telling young people that by smoking they are more likely to die in 30 years than in 50 is not likely to change their behavior.
[FN215]. See Ingrassi, supra note 211, at 76.
[FN216]. McAdams also discusses how norms regarding drunk driving have changed. See supra note 50, at 385 ("The 'loyal friend' defends the right of his friend to drink, even when driving, and feels guilt if he does not, until the esteem-based norm changes to 'friends don't let friends drive drunk." ').
[FN217]. As part of their on-going campaign in the late 1980s, a group of anti-alcohol activists from the Harvard School of Public Health met with 250 television writers and producers. As a result of that meeting, more than 160 prime time television shows included at least some dialogue about the harms of drunk driving. See Burt Solomon, Teens and Sex, Nat'l J., July 4, 1998, at 1566, 1568 (highlighting the media coverage of the designated driver concept).
[FN218]. The proportion of fatally injured drivers with a Blood Alcohol Level of .1% decreased significantly between 1980 and 1985. See H. Laurence Ross, Confronting Drunk Driving 40 (1992) (noting that the percentage of fatally injured drivers with a Blood Alcohol Content above .10% declined from 46% in 1980 to 39% in 1985). It is difficult to say whether this decrease is directly attributable to the efforts of groups like Mothers Against Drunk Driving, but it seems likely that their efforts contributed to this reduction.
[FN219]. See supra notes 87-92 and accompanying text.
[FN220]. For an extensive analysis of the problems with mandatory mediation, see Jennifer Gerarda Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 Emory L.J. 1247, 1273-99 (1994) (criticizing mandatory mediation from the victim's, offender's, and state's perspective).
[FN221]. See Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy 20.
[FN222]. See id. at 158; see also Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Aff. 83, 115 (1993) (asserting that deterrence and retribution, as opposed to mercy, focus on the crime committed, not the individual who committed it).
[FN223]. It is enthroned in the heart of kings, It is an attribute of God himself; And earthly power doth then show likest God's When mercy seasons justice. William Shakespeare, The Merchant of Venice, act 4, sc. 1, at 111-12 (Methuen & Co. Ltd., Arden ed. 1955) (1600).
[FN224]. Legitimate retribution "aims to defeat the wrongdoer in order to annul the evidence provided by the crime of his relative superiority." Murphy & Hampton, supra note 221, at 137.
[FN225]. See Brown, supra note 220, at 1308 (stating that Victim-Offender Mediation "characterizes cases as private disputes affecting individuals rather than the state, and it rejects the state's substantive legal rules for resolution of criminal cases").
[FN226]. Martin Schwartz, a criminologist at Ohio University argues that "[w]e have to figure out a way to change the culture on campus .. and disconnect sexual conquest from male self-identity." Dembner, supra note 180, at A1. Bob Haynor, who coordinates rape prevention efforts at one Northeastern college, argues that students know that "no means no," but date rape still happens because of "the culture of masculinity that supports [raping] behaviors." Id.
[FN227]. For a discussion of the gender status quo, see supra notes 58-67 and accompanying text.
[FN228]. The misogyny involved becomes clear when one recognizes that punishing a woman by making her masculine would not come close to invoking the same level of humiliation involved in punishing a man by making him feminine.