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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Closed-Circuit Technology. Under the new proposed Policy, witnesses may request to testify by closed-circuit technology in appropriate cases.
- 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.”
- 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!