Campus Sexual Assault: Bearing (and Sharing) Responsibility

By Briggs & Wholey LLC | Jan 28, 2016

For years, the legal and academic world has been struggling to understand the epidemic of sexual assaults on college campuses.  At the center of the debate is the role fraternities play in perpetuating the so-called “rape culture.”  Many commentators suggest that the key to reducing victimization among college students lies in reforming – or even abolishing – the system of fraternities on nearly every college campus.  While some blame the fraternities, others blame while male privilege for the staggering incidence of sexual assaults on fraternities.  Still others suggest that colleges and universities should take it upon themselves to correct the dangerous situations posed by traditional Greek life.

But who is legally responsible for these terrible events? Certainly, the individuals who perpetuate criminal acts are both criminally and civilly liable in the eyes of the law.  But for many years, questions remained above the legal responsibility of other entities who arguably play a role, including local fraternity chapters, national organizations, private colleges, and public universities.

In Maine, the law favors an approach that spreads the costs of campus sexual assaults to all responsible entities – even when such attacks are carried out by a single individual who appears to be acting on his own.  Last year, in the case of Brown v. Delta Tau Delta, the Maine Supreme Court held that a fraternity owes a duty to anyone permitted to attend events it sponsored in its local frat house.  2015 ME 75, ¶ 29, 118 A.3d 789.  The Court decided that the fraternity must take reasonable steps to provide an environment that is reasonably safe – which means that it must also be reasonably free from the danger of potential sexual assault by any members of the fraternity.  Id.  The Court decided that the fraternity had that responsibility in this case because it was clear that 1) the threat of sexual assault occurring at a frat party was foreseeable, 2) the fraternity had the ability to control both its individual members and the activities of the local chapter hosting the frat party, and 3) there was a clear command structure in place that could have been utilized to take appropriate steps to prevent sexual assaults from occurring at the fraternity’s events.  Id. ¶¶ 15-28.

Needless to say, not everybody agrees with this interpretation of the law.  However, it was not the first time the Court has decided that someone other than the perpetrator may share legal responsibility for a sexual assault on a college campus.  In 2001, the Court decided Stanton v. University of Maine System, a case in which a seventeen-year-old girl attending a pre-season soccer training program at USM was sexually assaulted in her dorm room by a young man who walked her home from a party.  2001 ME 96, ¶ 2, 773 A.2d 1045.  The girl and her parents sued the University of Maine System and successfully argued that the University owed a duty of care not just to put security measures in place on campus, but to reasonably warn students of the risk of sexual assault and to advise them of the steps they could take to improve personal safety.  Id. ¶ 10.

Some might say that these decisions put too much responsibility on schools and fraternities to police the actions of individuals.  No amount of lecturing or warning can prevent every assault from occurring.  The Law Court noted as much, but explained in the Brown case that its interpretation and application of the law necessarily requires that it take into account policy considerations – including the just allocation of loss.  2015 ME 75, ¶ 9, 118 A.3d 789.  For victims of sexual assault, this means that there may be a chance of being compensated for at least some of the physical, financial, and emotional losses suffered as the result of an attack in an unsafe environment.

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