In the wake of several high profile cases of students transferring from school to school after being found responsible for committing sexual assault, lawmakers across the country are considering proposals to mandate that universities note findings of sexual misconduct on students’ transcripts. New York and Virginia have already passed such legislation.
Supporters of these efforts typically cite regulatory and safety concerns, arguing that, without transcript notations, offenders will transfer from school to school undetected. Alternately, some survivors, who feel that their lives have been forever altered by their assaults, support mandatory transcript notations in an attempt to ensure that their assailants suffer punishment just as long lasting.
As survivors ourselves—some of whose perpetrators have transferred to other universities—we are sympathetic to the impulses motivating this effort. That said, we believe mandating transcript notations may hurt survivors in the long run and may undermine our commitments to equal access to education for all. We oppose transcript notations for four key reasons:
Mandated transcript notations may discourage victims from reporting. Some survivors do want to report violence in order to feel safe but do not want to get their assailant (who is often a current or former dating partner) “in trouble.” Consequently, they worry that transcript notations, which can make it difficult for an accused student to transfer to a new school, will have serious consequences for their partner, such as precluding them from continuing their education or getting a job.
Transcript notations may discourage administrators from opening an investigation or adjudicators from finding a perpetrator responsible. Much like mandatory minimums in the criminal legal system can lead to prosecutors bringing lesser charges or judges and juries being less likely to convict, mandated transcript notations—which effectively create an additional sanction, on top of a suspension/expulsion—can discourage administrators from opening cases and fact-finders from issuing findings of responsibility, even when warranted.
It’s not clear that transcript notations make communities safer. To our knowledge, there’s no data suggesting that transcript marks make a perpetrator less likely to reoffend in the future: while a transcript notation may prevent an offender from enrolling on a new campus, it’s not clear that it will make him less likely to assault someone in the general (non-campus) community. On the flip side, there’s no data, to our knowledge, that suggests that perpetrators who are expelled from one university and transfer to a new one, are more likely to reoffend than those who are expelled but unable to transfer to a new institution. What is known, is that it’s the likelihood of a sanction (e.g., suspension), not its severity, that deters violence.
Once someone serves their disciplinary punishment, that punishment should end. As survivors, we understand a desire for perpetrators’ punishments to last just as long as our own suffering. But we also believe that transcript notations can mimic the harms our criminal legal system and violate our own ethical commitments as anti-violence organizers. Unlike, for example, suspensions that allow a victim to graduate without having to share a campus with their perpetrator, transcript notations are permanently punitive measures—marking perpetrators indefinitely and often impacting their ability to access higher education (and thereby, job opportunities and earnings). Such measures offer little to no rehabilitative purpose: instead of teaching individuals how to participate in communities in non-violent ways, such policies simply remove them altogether. We want to be clear, though: we do not espouse an ideology of mandatory forgiveness, in which victims are expected to “move on” and sacrifice their own healing for their abusers’ convenience and comfort. We do, however, seek a more liberatory framework that does not rely on permanently punitive measures that treat certain people’s rights as disposable.
What should we do instead? Schools have a responsibility to ensure that their campus communities are ones in which students can learn free from violence. We propose that schools alert the university to which a student has transferred of a sexual misconduct finding after the student has been admitted. In this way, the new school receives knowledge of the student’s past behavior and is able to take reasonable steps (e.g., mandatory counseling, anti-violence classes, etc.) to prevent violence in the future, without foreclosing the possibility of a student being able to access education at all.
- Michelle J. Anderson, Yale Law Journal, “Sexual Assault Adjudication and Resistance to Reform”.
- Sarah Stillman, The New Yorker, “The List”