Opening the Door

Abstract

Campus sexual assault prevention efforts have traditionally focused on criminal prosecution and Title IX adjudication as avenues of deterrence and redress. This focus has largely ignored civil litigation, which could be a route for survivors to obtain critically helpful economic damages. While civil lawsuits often do not go forward because the tortfeasor is judgment-proof, for the significant portion of campus sexual assaults that involve fraternities, there is an opportunity for survivors to hold the national fraternity organization liable for negligent supervision. This litigation theory is premised on the significant control that national fraternity organizations exert over their chapters, and thus their members, particularly in the form of powerful punitive mechanisms. Undergirding national fraternity control and this litigation strategy is the fraternity insurer, which indemnifies the national fraternity organization for third-party liability arising from harms inflicted by its members and enforces internal fraternity control structures. This Note brings together scholarship on civil remedies for sexual assault, the relationship between tort liability and fraternity structure, and insurance as regulation to highlight an underutilized strategy in the campaign to reduce campus sexual assault. It surveys how, in the presence of a deep pocket, civil remedies are particularly appropriate for certain survivors. It also explains that, contrary to the conclusions of many courts, national fraternity organizations exert significant control over their chapters, and therefore their members, particularly through insurance mandates. I contend that national fraternity organizations should therefore be more frequently held liable for negligent supervision in cases of campus sexual assault and demonstrate how to build such a case. Doing so will provide needed economic remedies for survivors while reinforcing fraternity responsibility. * J.D., Stanford Law School, 2020. I am grateful to Nora Freeman Engstrom and Robert Rabin for the inspiration and guidance; to Deborah Rhode for her encouragement and mentorship; and to Claire Santiago, without whose support this Note would not have been possible. Thank you also to the editors of the Stanford Law Review, particularly Christie Corn, Katherine Giordano, Cody Kahoe, Emily Tu, Annie Wanless, Greg Terryn, Jenn Teitell, Aletha Smith, Lori Ding, and Nicole Collins. Their hard work is reflected throughout; all errors and opinions are my own. Opening the Door 72 STAN. L. REV. 1717 (2020) 1718 Table of