Take Note Universities: UVA is Paving the Way

A little behind on this, but it’s still noteworthy and extremely important. Although a number of schools have started to make minor changes to their sexual misconduct policies in light of the OCR’s Dear Colleague Letter, the University of Virginia is the first to really do a full re-vamp (because they had started the process a few months before). On May 4th they released their revisions, and are having a public comment period that lasts until May 20. SAFER recently held a training down at UVA thanks to our former ED, Margaret, and we know those students are hard at work getting their comments together.

But a lot of these changes seem great. Take a look:

  1. Emphasis on Assistance to Victims. The proposed new Policy begins by setting out, in clear terms, where a victim of sexual misconduct can turn to obtain immediate assistance and support.
  2. Definition of “Sexual Misconduct” Significantly Broadened. Under the proposed new Policy, “Sexual Misconduct” is a broad term that encompasses any unwelcome sexual behavior that occurs without effective consent. Sexual Misconduct has therefore been revised to include “sexual harassment,” which is broadly defined and may include instances of stalking, cyberstalking or relationship violence, and “sexual exploitation,” which includes causing another’s incapacitation, recording or transmitting sexual images, voyeurism, and the knowing transmission of a sexually transmitted infection (“STI”) to another person.
  3. Clarification of the Definitions of “Effective Consent” and “Incapacitation.” The concepts of “effective consent” and “incapacitation” play a central role in most sexual misconduct cases. Under the proposed new Policy, these terms have been elaborated and clarified.
  4. No Geographical Limit on Jurisdiction. Under the existing policy, jurisdiction is limited to conduct committed on University-owned or leased property or where a student, faculty member, employee or visitor resides within the city of Charlottesville or Albemarle County. Under the proposed new Policy, there is no geographical limit on jurisdiction. Although conduct that is alleged to have occurred far from the Grounds may prove difficult to investigate, the new Policy covers sexual misconduct by a University student, wherever it occurs.
  5. No Time Limit on Invoking Procedures. Under the existing policy, complaints must be brought within one year of the alleged misconduct. There is no time limit to invoking jurisdiction under the proposed new Policy, as long as the accused student is a University student at the time the complaint is made.
  6. Clarification of Intake Procedures. The new Policy clarifies the initial steps in the process, from intake through the complainant’s decision whether or not to pursue adjudication.
  7. Clarification of University’s Response Where Complainant Does not Wish to Pursue Adjudication or Insists on Confidentiality. Pursuant to the “Dear Colleague” letter, the proposed new Policy clarifies how the University will respond when a complainant asks that her or his complaint not be investigated and pursued through adjudication or requests confidentiality of her or his complaint.
  8. Closed-Circuit Technology. Under the new proposed Policy, witnesses may request to testify by closed-circuit technology in appropriate cases.
  9. Evidentiary Standard Changed. Pursuant to the “Dear Colleague” letter, the evidentiary standard in adjudication of sexual misconduct cases has been changed from “clear and convincing evidence” to a “preponderance of the evidence.”
  10. Mediation Eliminated. Pursuant to the “Dear Colleague” letter, traditional mediation between the parties is no longer available, although a complainant may choose between a formal and an informal process of adjudication.

Particularly notable, I think, is the removal of geographic restrictions. Yes, as this summary notes, it may be hard to investigate an off-campus incident, but this at least guarantees that a student can report an assault that took place outside of the school’s traditional jurisdiction and know that they will be supported. Honestly, I want to spend some more time with the details of this policy and give a more thorough collection of thoughts, but I have been drowning in finals. Hopefully more coming soon…

The policy change getting the most attention is the changing of the standard of evidence to “preponderance of evidence” (which basically means “more likely than not.” The Washington Post article on the policy cites Security on Campus as estimating that only 10% to 30% of schools actually use the higher, “clear and convincing” standard, which puts UVA in the good company of a majority of schools who recognize that the preponderance standard, a standard used in civil cases, is appropriate for campuses. Amanda Hess also discusses evidence standards in this great piece at TBD, where she compares the preponderance of evidence standard to the one used at the University of Maryland. UMD’s policy states that “the burden of proof shall be upon the complainant, who must establish the guilt of the respondent by clear and convincing evidence.” Unsurprisingly, only four students have been disciplined for sexual assault over the last ten years.

I encourage UVA students and alums to submit their comments before the 20th!

Campus News Catch-Up

I’ve been a bit behind the ball on my news round-ups, so there’s a lot to catch up on…

Let’s start off with the good stuff! The students who worked so hard to get a sexual assault policy for the City University of New York system are getting some recognition from the administration. Students for a Greater CUNY recently updated their CUNY Policy Tracker, which was an amazing tool while they ran their campaign. Students currently working on policy change should check it out.

So proud of students at SUNY Geneseo who have, with their staff and admin allies, scheduled a campus-wide sexual assault teach-in in March. How awesome does this sound!?: “The SAT will address both truths and widespread misperceptions about campus sexual assault. Most importantly, the SAT will promote informed and constructive discussions among faculty, staff, and students that may inspire and inform new programs, policies, and procedures and empower participants to help solve this problem in our community.” We did a training at Geneseo last spring, and it’s really excited to see them moving forward.

There’s a great article in the Skidmore News about the school’s revised sexual assault policy, which goes into effect this month.  This article makes it sound like a lot of amazing improvements were made. And it’s great to read that students were very involved in the entire process.

Wesleyan has created a really excited new position on campus, the Sexual Assault Response Team (SART) intern. The SART intern is a student role, and is a “liaison between the administration and students who wish to report sexual assault.” The intern is a completely confidential resource for students—survivors and perpetrators.

Students at Dartmouth are brainstorming about what role the administration should play in combating sexual assault.

I really want to hear the sexual assault presentation given at Texas Tech University—it’s in talk show format, and the counselor who created it, Erin Snyder, sounds pretty great. Case in point: “I think sexual assault is a problem on every college campus…What I do is try to prevent it by giving students information on what is healthy in a sexual relationship.”

On to the (really) bad stuff.  A lot of press space has been given to the terrifying story of a Central Washington University house party that sent 12 students (11 female, one male) to the hospital and left others ill. Students at the party told police and reporters that they thought “roofies” were responsible, either put into a bottle of vodka that was made to make mixed drinks, or put into pre-made party drinks. The police were called by students who had left the party, after their friend was extremely sick. The Police Chief noted that when the police arrived at the house, there were sick students everywhere and no one at the house had decided to call the police. It’s worth mentioning I think that CWU’s sexual assault policy does not have an explicit amnesty policy stating that students who report assaults won’t be penalized for something like underage drinking. This is a good example of why it’s important for students to know they have that protection.

Amanda Hess wrote a really good piece on the 11 DAYS is took the University of Virginia to alert students to the sexual assault of a student who was attacked while walking home.  UVA should really know now about the importance of timely intervention. This isn’t acceptable.

Apparently the University of Illinois still hands out rape whistles.

Ms. Blog and Shakesville have both covered the distressing case of the Michigan State University basketball players who were accused of rape but are not being charged with rape, despite the fact that one of them admitted to investigators that the victim didn’t want to have sex. In response, a number of students have formed a Coalition Against Sexual Violence on campus.

Finally, last week I wrote about how within three weeks at the University of Minnesota three women reported assaults at three different frat parties. The school frats responded by banning alcohol at frat parties for the immediate future. Since then, the school paper has been the site of some interesting discussion, about a poor editorial choice in publishing a cartoon about the assaults and the need to fight the real causes of sexual violence.

Washington Post Article Misses the Mark

I found the title of the article “Schools trying to prevent and respond to sexual violence” in the Washington Post to be extremely misleading. I expected to read a some stories of how schools are adequately and sincerely making efforts to prevent and respond to crimes such as rape, but instead I found myself reading a boring, shallow article that barely grazes the real picture of violence on college campuses and how institutions are dealing with it.

One thing that resonated with me, though, is a trend that I am sure is a huge factor in the lack of proper response to gender-based violence:

“Most students don’t think violent relationships are a problem at college…If students think about abuse at all, they picture an older married couple, maybe poor or alcoholic — nothing like their friends at school.”

I would not hesitate to think that those false assumptions stop at students – many college administrators probably believe that, too, which obviously is a recipe for disaster. The media has taken a liking to highlighting the tragedy of Yeardley Love’s murder at University of Virginia as a sort of anomaly, while I hesitate to think that’s the case. I think that the perfect combination of a young white woman attractive by mainstream standards with the right people caring and spreading the word has contributed to her name becoming nationally recognized.

The article periodically throws in some lukewarm, general statements about measures that are supposed to be preventing sexual violence. “Schools can offer a level of protection beyond the criminal justice system’s capabilities” – they can but do they? The Center for Public Integrity has made it clear that schools often opt to let a student accused of rape go free, rather than have a legitimate, thorough investigation and subsequent judicial process.

I think the journalist who wrote this failed to paint a proper picture of what is being done about violence on college campuses. One commenter, 3russells, seemed to have agreed with me. If you remember, Yeardley Love murderer was a student at UVA. 3Russells details a history of sexual violence that has happened at UVA for years and lack of response.

UVA maintains a zero tolerance for cheating but not for rape….

In 2005 the University responded to a Freedom of Information request to divulge the exact number of student reported rapes. The UVA response was 52. That’s 52 crimes that resulted in zero arrests, zero sanctions…

In addition, the Dept of Education found UVA to be in violation of the Clery Act.”

Schools shouldn’t be merely TRYING to respond to sexual violence. They SHOULD be responding to it and preventing it. Most college campuses are no stranger to gender-based violence, so it is not a legitimate excuse to say that the sudden media spotlight of a murdered student suddenly awakened them to this prevalent, urgent issue.

Merely having policies, education programs, judicial processes in place isn’t enough alone. We should be looking at how effective these measures are and if they’re actually being implemented properly.

A little more on gag rules

If you missed my first post, or need a little more information, I wanted to flesh out the federal government’s ruling related to the University of Virginia’s prohibition on students talking about their disciplinary hearings. You can read about the case background in this longish article by a Charlottesville paper. In summary, a student was raped, her rapist was found guilty by the disciplinary board, he was allowed to remain on campus(!), and she was told that if she told anybody about the disciplinary hearing or its outcome, she could be punished!

UVA argued that such a confidentiality requirement was mandated by the law that protects student privacy – FERPA – while the former student, Annie Hylton, argued that the Clery Act supersedes FERPA in making the final determination of a college or university disciplinary process available without condition to both parties. Hylton was supported in this effort by Security on Campus, the organization that helped get the Clery Act passed 18 years ago. S. Daniel Carter, the Director of Public Policy for SOC, explained the ruling to me (and corrected a mistake I made – the gag rule only ever applied to the institutional process, never the survivor’s story of the assault itself).

The U.S. Department of Education’s letter to us regarding their findings in Annie Hylton’s Clery Act complaint against the University of Virginia draws on a similar ruling from 2004 that found Georgetown’s policy of requiring sexual assault victims to sign a non-disclosure agreement also violated the Act’s requirement that disciplinary results be shared with “both the accuser and the accused”
equally and unconditionally.

The new ground in the University of Virginia case is that it clearly applies the principal to cases where there isn’t a written non-disclosure agreement but either a verbal agreement not to talk and or the threat of some type of punitive action if a victim shares the information. This was implied in 2005′s “The Handbook for Campus Crime Reporting” (see page 105) but this is the first instance where it has actually been applied under these circumstances. This is important because the UVA approach is far more common than Georgetown’s.

You can read more about the Education Department’s rationale in their findings letter in the Georgetown case here.

Please note that this ruling applies to the final results in disciplinary cases which are defined as “the institution’s final determination with respect to the alleged sex offense and any sanction that is imposed against the accused.” This would include the name of the accused (and or information that could be used to personally identify them), what they were accused of, and whether or not they were found responsible as well as, ideally, an explanation for that finding.

There may still be FERPA based restrictions on other information provided to a victim if it was taken from the education records of the accused or another student as the Clery Act does not guarantee access to this information. So it is important to note that there may still be some restrictions under certain circumstances in some cases.

Finally, this issue concerns speaking about the actions taken by an institution in response to a report of sexual assault not the underlying sexual assault itself. In neither case was a restriction on speaking about the rape itself at issue rather victims were being silenced with respect to the actions their universities had taken in response.

Carter began his work with SOC when he was a student at the University of Tennessee a decade and a half ago, working on the “Campus Sexual Assault Victims’ Bill of Rights” that was added to the Clery Act a few years after it was first passed – an inspiring example of how student activism can lead to a life-long career!

Colleges cannot prevent students from talking about disciplinary cases

The Department of Education has ruled that UVA cannot prevent students from talking about their sexual assaults or their experience with the school’s Sexual Assault Board. Under the school’s previous policy, which was revised in 2005 and may now be in partial compliance with the ruling, students could face disciplinary sanctions if they spoke to anyone about their case or its outcome.

Although UVA claimed that such a gag-rule was necessary to comply with regulations governing student privacy, a former UVA student, with the assistance of Security on Campus, successfully argued that the Clery Act prevents such a gag-rule in cases of sexual assault and the Department of Education agreed.

I have not yet been able to find a copy of the letter the Dept. of Ed. sent to UVA, I will write with more details when I do. But many schools have versions of this rule – Kristen mentions it in her story from Adelphi – and this decision should help a lot of students who are afraid to talk about their experiences for fear of being punished by their school.