New policies and data on college athletes and sexual assault

New information about the prevalence of sexual assault committed by intercollegiate athletes came out this week via a one-year investigation by USA Today. Studying the prevalence of sexual assault in colleges has been notoriously difficult. There is widespread underreporting. Also, there are the cover-ups of reports, which we are learning more and more about in the #metoo era. The news organization encountered difficulties simply getting schools who had punished athletes to reveal that information. (More on that below.)

In short, the secrecy and shame around sexual assault continues, and it affects all of those who have been assaulted and the culture of sexual violence in which we live (I am speaking in a US context specifically). What USA Today did find, based on the data provided by 35 DI public schools was alarming though not necessarily surprising given the (few) studies that have come before.

In the past five years, NCAA athletes have been disciplined for sexual assault more than three times as often as non-athlete students. Across the 30+ schools who turned over their data to the paper, student-athletes comprise only 3% of the undergraduate population but were responsible for 9% of the sexual misconduct violations. Football players are less than 1% of the student population and were found responsible for 6% of violations. 


The data was pretty hard to come by according to the paper's own reporting on its process. (Some generously offered it for a price.) Those 35  schools represent only a 15% response rate. Lack of compliance with the paper's request for the information certainly indicates that schools do not want it known, despite the fact that all sexual misconduct violations are already reported to the government (Clery Act), just how widespread the issue of athletes and misconduct really is.

The lack of transparency, according to USA Today, puts them in the company of the Catholic Church, USA Gymnastics, and Boy Scouts of America. Several lawmakers are also upset that schools did not turn over the data as requested, so it is possible the legislature may get involved. The secrecy* affects the reporting of assaults committed by college athletes and, I think, calls into question just how effectively schools are dealing and will deal with reports when they are brought against athletes.

The other major finding from the investigation implicates the NCAA which, unsurprisingly, resents the implication(s). Student-athletes found responsible for committing sexual misconduct are not punished by the NCAA--in any way. (Remember this is the organization that punished student-athletes for selling their autographs.) Eleven of the student-athletes found responsible for sexual misconduct from the data collected (as well as 22 others whose cases were covered in the media in the last five years) transferred to other schools and continued their college athletic careers. At least one is currently in the NBA.

President Mark Emmert, when asked about what the NCAA would do in response to this new information, said that it was the responsibility of the schools to work these things out because they are the "decision makers." [pause for ironic laughter and eye rolling here] Also, he said the NCAA takes the issue of sexual assault seriously and that they spend "an enormous amount of time on the issue of the prevention of sexual assault.”

He did not give examples of what is done during all this time. But, according to the article, the NCAA's board of governors spent some of it last August failing to move forward with a recommendation from the Commission to Combat Campus Sexual Violence which urged the group to pursue legislation to deal with athletes who commit sexual and domestic violence.

Further pressed by an audience member asking if the NCAA might consider following what the SEC has done in banning transfers who have committed domestic or sexual violence Emmert responded that “all the rules are different, and all of them are complicated. It is an enormously complex issue when you look at the details of it. I think it’s an issue that’s going to routinely be discussed and debated widely.”

This is the organization that a month ago--after decades of failing to consider meaningful ways to remedy the exploitation of student athletes--said it would allow them to earn money off their images. So threat of lawsuit and the demise of the organization makes them take "complicated" things and act very swiftly on them. I have been waiting for the moment when someone who has been sexually assaulted by a student-athlete who had a known past history would sue the NCAA. With the current publicity, and the NCAA's weakened state after the California law, it seems like the right time for the right lawyer to at least pursue holding the NCAA partly responsible for this problem. Because despite Emmert's protestations, they are indeed a key decision (and culture) maker. Though the NCAA is not subject to Title IX and the deliberate indifference standard, what they are (not) doing now is certainly indifference.




* Privacy rights afforded by FERPA do not apply to settled cases in which the responding individual was found in violation of school policy. om releasing the results of hearings in which students were found in violation of college policies. These records can include the offending student's name, the violation, and the sanction. The reporting individual's name is never revealed.