Category Archives: Student Articles


Transforming Campus Culture to Prevent Rape: the Possibility and Promise of Restorative Justice as a Response to Campus Sexual Violence

Alletta Brenner[1]

Though feminists have long argued that rape is linked to sex discrimination,[2] legal responses to rape tend to ignore the ways that social and cultural norms contribute to sexual violence.[3] One exception, however, exists in the context of federal anti-discrimination law under Title IX, which applies to colleges and universities that receive federal funds. Under the legal framework established by Title IX, rape constitutes a form of severe sexual harassment, to which educational institutions are legally obligated to respond.[4] An institution’s failure to do so is considered evidence of sex discrimination and may subject it to both federal penalties and civil liability.[5] Recently, this obligation was further strengthened by the passage of legislation that codifies particular aspects of what campus grievance processes for rape survivors must include and requires schools to take affirmative steps to transform campus culture to prevent rape.[6]

Despite this clear legal mandate, rape remains a serious and enduring problem at colleges and universities in the United States. Indeed, roughly one in five female students are victims of rape at some point in their post-secondary education.[7] If we add to this the substantial numbers of male[8] and transgender[9] students who experience sexual violence also, it is clear that the scope of the problem is huge. The overwhelming majority of these rapes are “acquaintance rapes”—nonconsensual sex between students who have some pre-existing social relationship.[10] As these numbers indicate, many institutions fail to take adequate steps to respond to and prevent campus sexual violence.[11]

In a related article, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape,[12] which was published in the Summer 2013 issue of the Harvard Journal of Law and Gender, I argued that feminist theories of rape tend to be imbued with dichotomous ways of thinking that limit both theoretical frameworks for understanding sexualized violence, and practical legal proposals for how to better prevent and respond to it. In that article I argued feminists should adopt an intersectional view of such violence that treats it as a rupture in the process of human recognition. This approach, which emphasizes the individualized effects of sexualized violence, attempts to draw attention to the ways that the construction and performance of identities can contribute to dehumanization and seeks solutions that help to re-humanize both victims and perpetrators. I concluded by arguing that a possible alternative to addressing sexualized violence may look like the emerging practice of restorative justice.

This second article aims to translate the theoretical foundation offered in Resisting Simple Dichotomies into a concrete proposal for real-world practice. In many ways, college campuses offer a rich environment for developing radically new ways of thinking about and responding to rape. For, as much as rape is a particularly serious problem on campuses, it occurs within a social and institutional framework that offers profound possibilities for the mobilization of social change.

The starting point of this paper is the premise that campus grievance processes should be more survivor-oriented and equitable. Applying an intersectional view of how and why campus rape occurs, I argue that colleges and universities should seek to engage the broader student community in dialogue and utilize the grievance process as a means of both holding offenders accountable and preventing future rapes. Restorative justice offers one model for how schools might augment their campus grievance processes to respond to acquaintance rape cases to achieve these goals. Though a restorative justice approach may not be appropriate in every case, I argue that it may provide significant benefits for some survivors and offenders, and help to fill the gaps between existing preventative and remedial approaches.

Full Article: Brenner, Transforming Campus Culture

[1] J.D., Harvard Law School, 2014.

[2] See generally Susan Brownmiller, Against Our Will (1975) (arguing that rape is a product and tool of male domination); Lorenne M.G. Clark & Debra J. Lewis, Rape: The Price of Coercive Sexuality (1977) (arguing that rape was an expression of perceived male entitlement to the control and use of female sexuality),

[3] See Susan Estrich, Rape, 95 Yale L.J. 1087 (1986) (arguing that the law of rape fails to protect women from acquaintance rape because it simultaneously considers the fact of social context, in that the victim and perpetrator know each other, to imply consent while failing to account for how social context sets up the necessary conditions for sexual coercion); Catharine Mackinnon, Women’s Lives, Men’s Laws 240–48 (2005) (arguing that criminal law fails to account for power imbalances between victims and perpetrators and that rather than using a consent standard, rape law should employ a standard of whether the sex was “wanted”).

[4] Under Title IX, once an incident of campus rape has occurred, schools must “take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.” See U.S. Department of Education Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 2–4, 15 (2001).

[5] Id.

[6] Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-14, Sec. 304, 127 Stat 54, 89­–92 (2013) (codified at 20 U.S.C.A. § 1092).

[7] According to the most comprehensive study available, roughly twenty to twenty five percent of women are raped at some point while in college. See Bonnie S. Fisher, et al., U.S. Dep't of Justice, The Sexual Victimization of College Women 10, 17 (2000). See also American College Health Association, National College Health Assessment Spring 2012 Reference Group Executive Summary 5 (2012) (confirming that approximately 3.5 percent of college women reported being raped in a 12-month period).

[8] See Christopher P. Krebs et al., The Campus Sexual Assault Study: Final Report 5.5 (2007) (finding that 6.1 percent of male students were victims of completed or attempted sexual assault during college). But see Mary E. Larimer, Amy R. Lydum, Britt K. Anderson, and Aaron P. Turner, Male and Female Recipients of Unwanted Sexual Contact in a College Student Sample: Prevalence Rates, Alcohol Use, and Depression Symptoms, 40 Sex Roles 295, 301–02, 305–06 (1999) (reporting findings of study where undergraduate males reported unwanted and coerced sexual activity at levels comparable to those of their female counterparts).

[9] See Rebecca L. Stotzer, Violence Against Transgender People: A Review of United States Data, 14 Aggression & Violent Behav. 170, 177–78 (2009) (surveying data and concluding that all transgender persons have an especially high lifelong risk of multiple types and incidences of violence, particularly sexual violence).

[10] See Fisher, supra note 6, at 17 (finding that more than ninety percent of female college rape victims know their attacker); Larimer, supra note 7, at 305–06 (finding that coercive sex experienced by male students was perpetrated by other students, usually female).

[11] See Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. U. Chi. L.J. 205, 210–24, 235–44 (2012) (discussing deficiencies in colleges’ and universities’ systems for responding to sexual violence and the way that inadequate enforcement of federal laws aimed at improving responses exacerbates the problem).

[12] Alletta Brenner, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape, 36 Harv. J. L. & Gender 503 (2013).


The Massachusetts Transgender Equal Rights Bill

By Jean Strout

When the Transgender Equal Rights Bill was introduced into the Massachusetts legislature in 2011, opposition emerged from a surprising source: Black and Pink, a Massachusetts-based radical “open family” of queer prisoners and their allies who “work toward the abolition of the prison industrial complex.”  Massachusetts’s Transgender Equal Rights Bill forbids discrimination based on “gender identity” in a variety of areas, including employment, housing, credit, and education.  However, Black and Pink’s opposition focused solely on the hate crime sections of the bill, which mandate enhanced sentences for crimes based on gender identity.  this is not the first time that groups representing queer and transgender communities have voiced opposition to transgender civil rights legislation.  Black and Pink drew inspiration for their letter of non-support from the response of a group of New York organizations against the 2009 Gender Expression Non-Discrimination Act (GENDA), a similar bill which passed New York’s State Assembly multiple times but stalled in the Senate.  Five organizations that “work to advocate for and increase the political voice” of transgender and gender non-conforming communities of color, most notably the Sylvia Rivera Law Project (SLRP), wrote a letter to the GENDA coalition asking them to strike the hate crime legislation attached to the bill.

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Lost in Transition

By Jason Lee

While few in the LGBT community would be surprised to learn that in this day and age transgender individuals still face intense, pervasive discrimination in the employment context, the statistics are still nothing short of astounding.  A recent national survey of almost 6,500 transgender individuals found that nearly half of respondents had experienced an adverse employment action — denial of a job, denial of a promotion, or termination of employment — as a result of their transgender status and/or gender nonconformity.  Fifty percent reported harassment by someone at work, forty-five percent stated that co-workers had referred to them using incorrect gender pronouns “repeatedly and on purpose,” and fifty-seven percent confessed that they delayed their gender transition in order to avoid discriminatory actions and workplace abuse.  It is little wonder that many in the transgender community feel that they have no choice but to suffer through this type of hostility, as transgender employees who lose their job due to workplace bias are six times as likely as the general United States population to be living on a household income under $10,000 per year, and four times as likely to have experienced homelessness as transgender individuals who did not lose a job due to workplace bias.

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Trans-cending Space in Women’s Only Spaces

By Katherine Kraschel

When Cerri Banks started as Dean of Mount Holyoke College in fall of 2011, “assess[ing] the campus climate to see how it can better support diversity and inclusivity” was high on her list of priorities.  This is not surprising considering that Mount Holyoke College students hail from forty-eight states and seventy countries, and twenty percent of its student body is international citizens.  What some may find surprising, however, is that the newest dean of the oldest women’s college in the world wants to ensure an inclusive environment for non-women; among her priorities is making the campus more inclusive for transgender individuals.

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A Non-Medicalized Medical Deduction?

By Lauren Herman

On January 4, 2006, Rhiannon O’Donnabhain experienced what nearly every American taxpayer dreads — she was informed she was being audited by the Internal Revenue Service (“I.R.S.”).  After a lengthy battle that affected much more than her tax liability, O’Donnabhain’s struggle was vindicated: on November 21, 2011, the I.R.S. released a simple one page advisory stating that it will permit medical deductions for transgender medical care.  In releasing this advisory, the I.R.S. adopted the reasoning and conclusions of the previous Tax Court decision.

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No End in Sight

By Stephanie M. Berger

There is no dispute that human trafficking is a pervasive problem.  The International Labor Organization and the United States State Department estimate that there are more than 12 million people in “forced labor and sexual servitude” worldwide.  The State Department estimates that between 14,500 and 17,500 people are trafficked into the United States annually.  Sex trafficking, specifically, undoubtedly occurs in the United States — all one needs to do is read the local newspaper to find horrific accounts of women and children enslaved and abused in major cities across the country.  However, there is no way to know exactly how many trafficking victims in general and sex trafficking victims specifically exist in the United States, in part due to the United States’ problematic conflation of human trafficking and prostitution.  This conflation has enshrined the ideals of abolitionist feminists, who believe that prostitution is inherently coercive and abusive, and has refused to acknowledge the pro-work position that views prostitution on a spectrum including both forced and voluntary sex work.  Abolitionist ideals have most recently taken hold in End Demand efforts, which focus on criminalizing, punishing, and shaming men who buy sex as purported solutions to both prostitution and human trafficking.  This Article takes a pro-work position and aims to demonstrate the potential harms of End Demand policies.  It also proposes more productive methods for addressing human trafficking in the United States.

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Taking Rape Seriously: Rape as Slavery

In bedrooms and back alleys, at parties, in offices, and within families: rape happens, rape is real. At this very moment, there are approximately twenty million women in the United States who have been raped during their lifetime, and in one year, over one million women are raped in the United States. The numbers are staggering, but not unfamiliar. One in four women are victims of attempted or completed rape in the United States.

Despite the devastating and continuing prevalence of rape in the United States, estimated state rape conviction rates are as low as two to nine percent of total instances of rape (reported and unreported). At the state level, a local robber is thirty percent more likely to be convicted than a rapist, and a rape prosecution is twice as a likely to be dismissed vis-a-vis murder prosecution. Similarly, federal conviction rates for non-rape crimes, such as immigration and narcotics crimes, average as high as ninety-six percent. In effect, the rift between the widespread perpetration of rape and sexual assault and the minimal prosecution and conviction of rapists questions the commitment and priority of law enforcement, lawmakers, courts, and the public in treating rape as seriously before the law as it is treated in name. If rape is serious, why don't we take rape prosecution seriously enough?


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Abnormal Persons or Embedded Individuals?

Abortion regulations that require the woman’s “informed consent” have become a common means for states to influence and restrict women’s decisions to terminate their pregnancies. Yet the notion of informed consent, as originally developed in health care jurisprudence, bears little resemblance to the current invocation of the doctrine in the abortion context. Informed consent restrictions in abortion have been criticized as biased, paternalistic, and coercive, as well as divergent from the principles of autonomy and selfdetermination on which the original doctrine of informed consent was based.

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