We’ve covered a lot so far when looking at what makes a good sexual assault policy, but there’s one really important aspect that we’ve not yet addressed: the disciplinary procedure. There is so much at stake during a campus judicial proceeding, and the process can make or break an experience of a student seeking justice regarding a sexual assault. This is the point where, regardless of what is written in the policy, things can really break down if disciplinary procedures are not standardized and consistently enforced.
It’s really hard to assess exactly how disciplinary procedures work on different campuses just from reading things online. Obviously, I am most familiar with my own school’s procedure, so I’m going to talk about some of the really important aspects of a disciplinary procedure (I’ll try to introduce them in the order they might come up during a real hearing) and analyze what Columbia University is doing!
Statute of Limitations
Perhaps you’ve heard about the students at the University of Oklahoma, who took action after finding out that a student could not file if it was more than 30 days after the assault took place! Considering the amount of time it takes many survivors to come to terms with what happened, let alone prepare to file a complaint, that is a ridiculous statute of limitations (the school’s president agreed to increase it to one year). Columbia is much better about this—complaints may be filed against students who are currently enrolled in a school or on leave, in which case the hearing may be postponed until the respondent student has re-enrolled. There is also a provision that if charges are filed against a student in his/her final semester but the hearing process is not completed by the end of the semester, the respondent’s diploma may be withheld pending a final outcome. This makes sense: students should be able to file within the campus judicial system at any time, regardless of when the assault occurred, as long as the respondent is still in school.
The Hearing Panel
Columbia’s hearing panel is made up of two deans and one student chosen from a trained pool and all having no affiliation or other connection with either party. Both the complainant and respondent are given the names of all the panelists before the hearing and can challenge any member based on conflict of interest or prior acquaintance/association. If the student member of the panel is challenged, the parties can mutually agree to exclude the student hearing panelist entirely, so the panel would consist of only the two deans. In addition, it seems that the student member does not need to be in agreement about the finding. For there to be a finding of a violation of the policy, the panel does not have to be unanimous but both deans must be convinced. Essentially, if the student disagrees, his/her opinion does not matter. What’s the point of having a student on the panel then? Perhaps the student contributes to the discussion when trying to figure out an outcome, but it seems like if they are going through the trouble of training student panelists and having them spend their time hearing these cases, their opinion should be taken into account.
My guess is that there would be students filing a complaint who would not want student panelists at all, especially on a small campus. Even if the complainant or respondent did not directly know the student panelist, it’s quite possible there would be mutual friends and the possibility that confidentiality could be broken. My fear is that having student panelists might deter some students from filing. On the other hand, maybe students want a student there as a peer—someone who might understand the type of situation they were in, the kind of social environment on the campus, etc. Either way, I think what’s best is giving students the option to opt in or out of having students on the panel.
Obviously, all hearing panelists should be trained. Columbia does this—wonderful! Anyone making any sort of decision on sanctions or appeals should also be trained. This is where Columbia has fallen behind. In addition, the new OCR guidelines state:
Training for employees should include practical information about how to identify and report sexual harassment and violence. OCR recommends that this training be provided to any employees likely to witness or receive reports of sexual harassment and violence, including teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.
There’s a bunch of other tidbits about training in the guidelines as well. Ideally, every administrator, staff, faculty member, or any person at the university that comes into contact with students, as well as all the students at the university, should be trained to handle disclosures and know the resources available. Training that raises awareness and builds skills is essential in creating a safer campus community that is inhospitable to violence and encourages reporting.
Both students should have the same opportunities for support and information during a hearing. Columbia explicitly states:
Both students are entitled to have a Supporter present at the hearing. The Supporter must be a current member of the Columbia University community (faculty, staff or student). The Supporter, however, should not be someone who has a current formal role (e.g., an advisor, professor, coach, etc.) with both of the students or the other student, such that there is a potential conflict of interest.
In addition, the Supporter cannot be a witness, lawyer (either party can consult an attorney outside the hearing room) or faculty member of the student. The Supporter cannot intervene in the hearing, only support the student in a non-disruptive way. Whatever the rule is for having support during the hearing, fairness and due process demand that both parties have the same options for support.
The way the complainant was dressed and his/her past sexual history should not be used as evidence during a hearing. Victim-blaming is rampant in our rape culture, and practices that focus on what the victim was doing at the time of the assault only serve to reinforce that blaming. Columbia clearly states:
The prior sexual history of either party, other than the history of a sexual relationship between the parties, is not admissible in the hearing, except testimony submitted by a party concerning his or her own sexual history. Either party may submit evidence of the history of any sexual relationship between the parties. If either party submits such evidence, then the other party has the right to respond to that evidence.
There seems to be no explicit mention of the way the complainant was dressed, but Columbia does make clear that they are only concerned with what happened surrounding the particular incident in question (meaning they don’t want character witnesses, etc.) because what they are trying to determine is if the respondent violated the sexual assault policy.
Should universities have minimum sanctions? Columbia doesn’t. The policy says:
Sanctions include, but are not limited to, reprimand/warning, disciplinary probation, suspension, or dismissal; a student may also be barred from certain University facilities or activities, or required to attend education programming.
There is a whole range of sanctions determined on a case-by-case basis, and this system has advantages and disadvantages. First, I think it acknowledges that there are gray areas and different circumstances. It may give students who made a mistake a chance to learn something (maybe from attending educational programming) and never sexually assault someone again. On the other hand, universities can get a bad rap for not taking sexual assault seriously enough. There is the risk that a serial rapist will be allowed to remain on campus in a setting where their next victims are just down the hall. It’s a tough balance, but what needs to be clear is that if there is a violation of the policy, schools will take that seriously and recognize when someone needs to be removed from campus for safety and justice.
When it comes to the appeals process, there are three very important parts of a good procedure:
- Both the complainant and respondent should be able to appeal. The students should be given equal rights to appeal the outcome of the hearing following due process. This is currently not the case at Columbia—only the respondent can appeal, but this is something that they are looking to change in the near future.
- One person should not be given all of the power in the appeals process. Often, one university official can strike down the sanctions that were imposed, and when the possibility of a conflict of interest exists because the person making the decision is a Dean of the student in question, this is problematic. Columbia currently has it set up so that the Dean of Student Affairs makes the final decision on sanctions after a recommendation from the Hearing Panel. The respondent then can appeal to the Dean of the school that he/she is enrolled in, and this Dean has complete authority at that point on what happens to the sanctions. Some sort of check on this power is important.
- There should be a reasonable amount of time given for a student to appeal. When a Columbia student finds out the outcome and sanctions from the Dean of Student Affairs, he/she then has 30 days to appeal. This is a really long time, especially for the complainant to wait. It leaves survivors on edge for a whole month after the hearing is supposedly over and gives too much time for the respondent to find a procedural error or some other grounds for appeal. For some universities, this window of time is as little as 3 days, but generally, no more than about a week seems reasonable to me.
Again, these are just a few of the important issues that come up when discussing a campus judicial process. There are many more we could talk about, but I just wanted to go over a few key things to start thinking about when looking at your school’s policies and procedures. If you want to know more about what your school is doing in terms of disciplinary procedures, any current student or recent alumni can walk through their policy by participating in SAFER’s Campus Accountability Project. Submit your policy today!