Rape ... By Any Other Name

Reports of 'non-consensual sexual intercourse' have increased at Boise State University


In a perfect—or at least much better—world the sole reason for the low number of reported rapes on Idaho college campuses would be few-to-no sexual assaults. Victims of these crimes, know otherwise, though. In its April 2014 report, The White House Task Force to Protect Students from Sexual Assault confirmed "one in five women is sexually assaulted in college."

Yet, according to Boise State University's annual Security and Fire Safety Report, there were six reported rapes on campus property in 2014, one of which was "unfounded." Four on-campus rapes were reported in 2013 and three were reported in 2012. However, three on-campus rapes have already been reported in 2016, suggesting a trend that this year could see double or even triple the number of reported on-campus rapes at Boise State. Experts, however, say that conclusion misses the larger point.

"I want to clarify something: In some ways, an increase in these reports is actually a good thing," said Annie Kerrick, director of Title IX/ADA/504 Compliance at Boise State. "We know that we have a large number of students who are sexually assaulted every year while they're here at the university, but if we're not getting those reports, we have no way to help them. The fact that we have people coming forward is a very good sign to us."

Kerrick spends about 80 percent of her time at the Boise State Office of Institutional Compliance and Ethics, investigating complaints ranging from discrimination on the basis of race, gender, sex or national origin to sexual assault. She estimates her office investigates more than 100 complaints annually. To be clear, she and her Boise State colleagues are investigating violations of university policy, not criminal complaints, which leads to another clarification, Kerrick said.

"We don't call it 'rape.' We call it 'non-consensual sexual intercourse,'" she said. "'Rape' is a criminal term. University policy is broader than state law, and we don't want to confuse our process with the criminal process."

According to Boise State Policy No. 1065, "non-consensual sexual intercourse" is intercourse "in which one party has not freely agreed to participate, whether or not it is performed through force. Sexual intercourse includes vaginal penetration by a penis, object, tongue or finger; anal penetration by a penis, object or finger; and mouth to genital contact, no matter how slight the penetration or contact."

"But when we're required to report incidents to the U.S. government for Clery Act requirements, you'll see the term 'rape' in those statistics," said Kerrick.

The Clery Act, named for Jeanne Clery, a 19-year-old college student who was raped and murdered in 1986 at Pennsylvania's Lehigh University, is a federal statute requiring all colleges and universities participating in federal financial aid programs to disclose crime statistics, which are compiled by the U.S. Department of Education. Additionally, Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in programs and activities at any educational institution receiving federal funds, including Boise State.

"I was hired in July 2013 to be Boise State's first full-time Title IX director," said Kerrick, who spent the previous six years as a staff attorney for the Idaho Coalition Against Sexual and Domestic Violence. "I knew that Title IX was a law that provided some remedy to victims of sexual assault when the criminal justice may not be working for them."

For example, the university can accommodate change in class scheduling and housing and, most importantly, can provide a number a health- and behavioral-care services to support victims—but Kerrick knows all-too-well that reaching out to assault victims requires victims to step forward.

Author and political consultant Dr. Caroline Heldman stunned more than a few attendees of an Andrus Center for Public Policy Boise luncheon in June 2014 when she pointed to what she called "an ongoing epidemic" of unreported rape on college campuses.

"I estimate that Boise State had approximately 220 sexual attacks last year," Heldman told a room full of Boise State students, faculty, staff and members of the general public. "You have a vast underreporting problem."

Kerrick was at that luncheon.

"Right now, I would say we really don't know how many there are, but we want to change that with a pretty important survey. This is something that I talked about when I first started in this position in 2013 and in 2014, the White House Task Force to Protect Students from Sexual Assault said American universities should conduct such a survey."

Currently, Boise State officials are reviewing the language in a survey that will, for the first time, ask students to share their experiences on a number of issues, including sexual harassment and assault.

"We know quite a bit about our students when it comes to their financial needs or academic performance but, right now, we really don't know what their true challenges are when it comes to this issue," said Dr. Chris Wuthrich, Boise State dean of students. "Right now, we're determining whether we'll send it to every student or whether it goes to a large subset of the student body. Either way, it will be a significant first-of-its-kind study that gives us a better picture of what the climate is out there."

Unfortunately, the "climate" continues to cast shadows of shame or fear upon victims of rape or sexual assault. For example none of the incidents of sexual assault at Boise State this year were reported to Boise police. Instead, the crime logs indicate the incidents were recorded as "CSA Report Only for Statistical Purposes." CSA stands for Campus Security Authority, meaning only campus officials are aware of the incident because the alleged victim chose not to pursue a criminal investigation.

"Believe me, if they are victims of a crime, I want them to report to police and we'll help them do that ... they're talking about something that happened to them against their will. Their choices were completely taken away," said Kerrick. "The last thing I want to do is put them in a scenario where their choices are taken away again. It's up to the victim on how they want to proceed. And we want to help them with that."

There are exceptions to reporting to law enforcement, though. For example, if a victim reports an incident in which severe physical violence required hospitalization or if the incident involved the use of a weapon, the university would be obligated to report the incident to law enforcement.

If the victim chooses not to report the incident to law enforcement but does notify the university, a special investigation supervised by Kerrick is launched. In nearly every case, Boise State tries to complete its investigation within 60 days of the report. Each party is given the opportunity to respond but, ultimately, Kerrick reviews the report and makes a recommendation for possible sanctions.

If an alleged assailant is a student, the recommendation goes to a special panel under the Department of the Dean of Students, which meets every two weeks. If the matter involves staff or instructors, the matter would possibly go to Boise State's human resources division.

"And, to be clear, if either or even both of the students or staff have left the university, we will not close that file until the full investigation is complete," said Wuthrich. "We owe that to the university at large."

Wuthrich said his experience with the criminal justice system tells him a criminal court case could take a year or two for resolution, while the university protocol system could be resolved within a few months.

Ultimately, Kerrick said, it's all about believing someone. When asked how often she speaks to victims of assault, Kerrick took a long pause before answering,

"Daily. My first words," she said before another long pause, "would be, 'I'm sorry. I'm sorry that happened. We can help. And I can walk you through that process.'"