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Legal Developments: Addressing Campus Sexual Assault in 2016
Posted by On Friday, January 22, 2016

The level of legislative activity to address campus sexual assault in 2015 reflects the national concern surrounding this problem. And the intense focus on Title IX compliance and prevention programs now includes K-12 schools. These signs indicate that the law will continue to evolve with new strategies to address campus sexual violence in 2016.

This post contains a rundown of significant legal developments in 2015 and what to watch for in 2016 that may have direct and indirect implications for preventing and handling cases involving sexual and interpersonal violence committed against students. For a more detailed discussion of recent state laws, download our white paper.

OCR Investigations

At the end of 2015, 159 colleges and universities and 63 K-12 schools were under investigation by the U.S. Department of Education’s Office for Civil Rights. The Chronicle of Higher Education’s Title IX investigation tracker lists 243 investigations opened since the OCR’s 2011 Dear Colleague Letter. And the OCR’s 2016 budget was increased by $7 million for additional enforcement staff.

With a growing list of K-12 investigations, colleges and universities are not the only targets of Title IX complaints and OCR investigations. For example, Know Your IX, a non-profit organization founded by student survivor activists, provides a self-described “one-stop-shop, information-rich website” that has added a Title IX toolkit for high school students.

There is no question that the number of OCR investigations has grown since the OCR issued its 2011 Dear Colleague Letter, which Catherine Lhamon, Assistant Secretary of the OCR, told a Senate Committee is “an explanation of what Title IX means.”

Challenging the OCR’s investigatory authority, Senator James Lankford (R-Oklahoma), Chairman of the Subcommittee on Regulatory Affairs and Federal Management, last week sent a sharply worded letter to Acting Secretary of the U.S. Department of Education, John B. King, Jr. In his letter, Senator Lankford argues that the OCR guidance letters were not created through the notice-and-comment procedures required by the Administrative Procedure Act.

Therefore, Lankford requests “specific statutory and/or regulatory language that, in your view, the [2010 and 2011 Dear Colleague] letters interpret or construe . . . no later than February 4, 2016.” To the extent that they create compliance obligations beyond existing statutory or regulatory language, Lankford demands that “failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.”

High School Prevention Programs

New federal and state laws acknowledge that prevention and awareness programs must start before students arrive on college and university campuses. On December 10, 2015, President Obama signed into law the Every Student Succeeds Act (ESSA, S. 1177), which will start to take effect during this next school year. The ESSA allows public K-12 schools to use Title IV grant funds for training on safe relationship behavior, including affirmative consent and sexual assault prevention.

In addition, as of January 1, 2016, California public high schools must cover sexual and interpersonal violence and harassment awareness and prevention in their health education curricula.

In Michigan, both the House and the Senate have passed identical bills requiring public high schools to teach students affirmative consent standards. The bills have not yet been signed by the governor.

New Laws, Pending Bills, and ALI Guidelines

For higher education institutions, at least 29 state legislatures considered campus sexual assault legislation in 2015 (new state laws are discussed in our white paper), and the 114th Congress will continue its debate of four pending federal bills in 2016: the Campus Accountability and Safety Act (CASA), the Hold Accountable and Lend Transparency Campus Sexual Violence Act (HALT), the Safe Campus Act, and the Fair Campus Act. Each of these bills addresses how colleges and universities handle reports of sexual violence, and the co-sponsors of the CASA bill (turned into the “Senators of Steel” by Marvel) predict that its provisions will be included in the Higher Education Reauthorization Act when it comes up for a vote in 2016.

Recognizing this emerging maze of legislative solutions, the American Law Institute has assembled a team to help address the unique problems facing the higher education community in disciplinary proceedings. ALI describes its mission as “producing scholarly work to clarify, modernize, and otherwise improve the law.”

Members of the ALI team say they bring “a sense of expertise, professionalism, and balance to that kind of debate” and “can help take the politics out of a politicized issue.” The team includes college leaders, victim advocates, and legal experts, including an OCR lawyer. This project will create guidelines and best practices for addressing campus sexual assault to create a process that responds fairly and effectively to complaints. Suzanne Goldberg, a clinical professor of law and executive vice president for university life at Columbia University, and a primary author of the preliminary guidelines, says the ALI team is proceeding with “a sense of urgency.”

Meanwhile, state legislators grew impatient waiting for federal legislation, taking matters into their own hands. The recent NASPA report analyzed recent state action and identified four primary legislative policy themes:

  • defining affirmative consent
  • the role of local law enforcement
  • transcript notation
  • the role of legal counsel

For a list of important state legislative action in 2015 that will shape how campus sexual assault cases are handled in 2016 and beyond, download our white paper on new state laws and pending bills.


Campus Climate Surveys: Expert Opinions
Posted by On Wednesday, August 12, 2015

There is limited research out there on how best to develop and implement Sexual Assault Campus Climate Surveys because they’re a relatively new trend. “Experts” on campus climate surveys are a wide range of folks with related expertise, whether it be in government, in sexual assault prevention work, or as student affairs administrators.

On July 29th, the Senate Health, Education, Labor, and Pensions Committee heard testimony around reauthorizing the Higher Education Act. The Campus Accountability and Safety Act would amend the broader Higher Education Act, which Congress is working to reauthorize. It would require schools to gauge how often sexual assaults occur on their campuses and offer confidential advisers for victims.  Below are a few statements detailing how the amendment would impact climate surveys as well as the opinions of some thought-leaders in the field.

Statement of Senator Dean Heller

“Sexual assault is a crime that more often than not goes unreported, which is one of the reasons why data provided by our nation’s institutions simply do not reflect the prevalence of this crime. In fact, there are many colleges and universities that have reported zero incidences of sexual offenses to the federal government. I strongly believe one of the most important provisions of our bill is the campus climate survey. This survey will improve access to accurate, campus-level data by allowing students to anonymously share their experiences related to sexual assault. Under our bill, schools will give their students an anonymous, online survey to gauge the scope of sexual assault on campus and the effectiveness of current institutional policies on this issue. The Department of Education will be responsible for developing this survey, as well as picking up its cost. Schools just need to ensure an adequate, random, and representative sample of students take the survey. The survey results will be reported to Congress and published on the Department of Education’s website. Because this survey will be standardized, the American public will be able to compare the campus climate of all schools. As a father of four children, I wish I had access to this kind of information when my kids were preparing to attend college. And, now as a grandfather of two, my hope is that when they grow up and go off to school, our nation’s campuses will be safer than ever before. The campus climate survey will be a useful, educational tool for both students and parents, as well as an invaluable resource for institutions to help create or enhance efforts to prevent sexual assault, assist survivors of this crime, and improve campus safety overall.”

Testimony of Dana Bolger, co-founder of Know Your IX

“To counteract the potential negative reputational consequences of encouraging survivors to report, Congress should mandate that schools conduct campus climate surveys and publish their results publicly. This step would provide invaluable information to students and their families – including prospective students – and would increase incentives for schools to appropriately address violence. Schools should also be required to publish aggregate statistics on how investigations are being handled, which would provide greater insight into whether or not disciplinary proceedings are being handled promptly and equitably. This will help ensure that students, parents, and policymakers can evaluate and compare how each school responds to complaints of gender violence in practice, not just on paper.”

Testimony of Janet Napolitano, President of University of California

“CASA requires that the Department of Education develop, design and administer a standardized, online, annual survey of students regarding their experiences with sexual violence and harassment every two years. Having just conducted the largest university system climate survey of its kind in the nation, I have significant concerns about the usefulness of a single survey developed for all institutions given the broad diversity in higher education institutions across the nation and the student populations they serve. UC surveyed not only students, but also faculty and staff about their experiences and perceptions of the campus or workplace climate. We now have a rich baseline of data that campuses are analyzing to identify key areas of focus. Institutions should be allowed to develop and use their own climate surveys, as long as they meet criteria and standards defined by the Department of Education and are developed in consultation with stakeholders. Further, I believe that it is inappropriate for the legislation to place the responsibility on the university for ensuring that an adequate, random, and representative sample size of students enrolled at the institution completes the survey. This requirement could compromise the perceived anonymity of the survey and would be especially challenging if the survey would be administered by the Department of Education and not the institutions.”

There are many mixed thoughts around the Reauthorization of the Higher Education Act: Combating Campus Sexual Assault.  Much of this disagreement focuses around the inclusion of mandatory, government-created campus climate surveys.  In April of last year, the Huffington Post published an article detailing some of the differing views about this component of the legislation. (For more information on CASA read our past coverage.)


Weekly Roundup
Posted by On Friday, July 31, 2015

In this weeks’ roundup: the pressure to be perfect hurts some students’ well-being, a push to expand training on sexual violence to K-12, and a Senate hearing on combating campus sexual assault.

Campus Suicide and the Pressure of Perfection

We’ve written about the increase in students’ self-reported mental health problems here and here. This piece from The New York Time examines how the pressure to be perfect can negatively affect students’ mental health and may even be linked to suicide. In the transition to college, high-performing students who faced few setbacks in high school may suddenly find themselves struggling in more advanced classes or lagging behind more accomplished peers.”[C]ultural dynamics of perfectionism and overindulgence,” explain the article, “have now combined to create adolescents who are ultra-focused on success but don’t know how to fail.” As one counselor explained to the Times, “What you and I would call disappointments in life, to them feel like big failures.” For some students, this sense of failure leads to mental health issues or even suicide. Despite their struggles, however, many students try to maintain a facade of happiness and easy success, exacerbating the problem. At some schools, students even have a name for this phenomenon: “Penn Face.” As one student explained to The Times: “Nobody wants to be the one who is struggling while everyone else is doing great…Despite whatever’s going on — if you’re stressed, a bit depressed, if you’re overwhelmed — you want to put up this positive front.”  As a result, some schools are looking at ways to alleviate this pressure and to have more open conversations around mental health issues.

Campus Sexual Assault Prevention in K-12 

Campus Climate surveys are revealing that over a quarter of college women report being the target of rape or attempted rape before ever coming to college and around 20% of college men have committed some kind of sexual assault in the five years leading up to arrive on a college campus. This data is being used to add to the efforts of including sexual assault prevention in high school sex education.  The Teach Safe Relationships Act of 2015, which currently sits in the senate,  would give high schools grant money for including rape prevention and consent education in their sex ed curriculum.  California is currently reviewing legislation to make affirmative consent education mandatory in high school sex ed programs.  At this time, only 20 states and the District of Columbia require high school sex education to include information about “avoiding coerced sex.”  Moreover, only 35 states even require education around either sex or STIs. “We need to get that education out there early on,” Dr. Heidi Zinzow of Clemson University, said in an interview with Huffington Post. “I think a lot of these men would think, ‘Oh what do I do instead, do I need to ask?’ They just don’t even have the basic skills or know what the scripts could be. They need the social skills to know how to get consent.”

Senate Committee Hearing on Combating Campus Sexual Assault

On Wednesday, July 29, 2015, the U.S. Senate Committee on Health, Education, Labor and Pensions held a hearing on reauthorizing the Higher Education Act (HEA), focusing on campus sexual assault. Senators McCaskill, Heller, Ayotte, and Gillibrand testified in support of proposed amendments to the HEA in the pending Campus Accountability and Safety Act, which include required campus climate surveys and confidential advisors for victims reporting sexual violence. Senator Gillibrand also submitted a letter of support from the Louisiana legislature, which recently passed a state version of CASA. Both committee members and witnesses voiced strong support for mandated prevention education for all students and employees. In addition, President of the University of California, Janet Napolitano, recommended that federal legislation be flexible enough to allow large and small institutions to address the different issues facing their campus communities. Responding to Senator Elizabeth Warren’s question about prevention efforts on the UC campuses, Napolitano said that online, in-person, and peer-to-peer prevention education are being used by the UC system to improve campus climates and promote community involvement to prevent sexual violence. Dana Bolger of Know Your IX also responded to Warren’s question stating, “the most important thing about prevention education is that it starts early and it just keeps going.”


How the HALT Act would Transform Title IX Enforcement
Posted by On Saturday, June 6, 2015

Last summer we wrote about the HALT Act, Hold Accountable and Lend Transparency on Campus Sexual Violence Act. The bill was introduced into the House by Representatives Jackie Speier and Patrick Meehan. According to Congresswoman Speier’s website, the HALT Act will significantly expand the federal government’s ability to hold colleges and universities accountable if they fail to protect their students’ civil rights by:

(1) requiring the Department of Education to issue penalties for noncompliance with civil rights requirements under its authority, including Title IX;
(2) increasing penalties for violating the Clery Act from $35,000 to $100,000;
(3) creating a private right of action for students harmed by institutions that fail to meet campus safety requirements;
(4) instituting biennial climate surveys;
(5) requiring greater transparency and public disclosure of a list of institutions under investigation, the sanctions (if any) or findings issued pursuant to such investigations, and copies of all program reviews and resolution agreements entered into between higher education institutions and the Education and Justice Departments under Title IX and the Clery Act;
(6) increasing funding for Title IX and Clery investigators by $5 million;
(7) expanding institutional requirements to notify and publicly post students’ legal rights and institutions’ obligations under Title IX; and
(8) creating an interagency task force to increase coordination between agencies and enhance investigations.

The HALT Act is similar to the CASA Act, the Campus Safety and Accountability Act, introduced last year in the Senate by Senators Claire McCaskill and Kirsten Gillibrand, which strengthens the enforcement of Clery Act and Title IX and would also require schools to provide an annual climate survey.

Contact us at 1-800-652-9546 to find out more about how we can help your institution comply with Title IX and how we can help you with climate surveys. Follow us to stay up-to-date on compliance news.


Weekly Roundup
Posted by On Friday, February 13, 2015

A new study suggests disturbing trends in the frequency of sexual assault reporting, what Canada could learn from American sexual assault laws, and what American colleges could learn from the military academies.

Do Schools Report More Assaults When They’re Being Investigated?

A study published in Psychology, Public Policy, and Law found that schools being audited by the Department of Education saw an average rise of 44% in the number of reported sexual assaults. More worrisome, however, is what happened after the audit ended—the average school went back to the pre-audit number of reports. One possibility is that schools over report assaults while being audited out of an overabundance of caution. Another uglier explanation, favored by the researchers, is that schools under report violence when they think they can get away with it. In any case, the New York Times article points out that climate surveys, a key aspect of the proposed Campus Accountability and Safety Act, could result in more accurate, consistent information.

What Could Canada Learn from America’s Higher Education Laws?

While The New York Times calls for passage of the Campus Accountability and Safety Act, which would amend the Clery Act, Canadian news outlet CBC is pointing to that 1990 law as an example of the sort of legislation needed to address campus sexual violence in their country. While observers in this country often decry what they see as slow or inadequate responses to sexual assault cases on college campuses, CBC points to cases in which students used the Clery Act to force schools to respond to rape and other violence on campus in a relatively timely manner as evidence that similar legislation is needed in Canada, where a lack of such laws at the national level leads to an inconsistent “patchwork” approach.

What Can Colleges Learn from Military Academies?

Just as Canada may have something to learn from the United States, American colleges might take a page out of the military service academy’s book when it comes to sexual assault prevention. The U.S. Naval Academy, Air Force Academy, and West Point have been under scrutiny for their handling of sexual assault cases for some time, as has the military as a whole. As a result, they have implemented more extensive anti-violence programs than many liberal arts universities. For example, at Annapolis, students are required to participate in training during all four years of their education. The program is further distinguished from other higher education training by the fact that current students lead lessons and discussions. That approach is already being considered by Dartmouth College as a potential model for their own anti-sexual violence training programs. It is also worth noting that both Senators Claire McCaskill and Senator Kirsten Gillibrand, who have worked on reforms to improve how the military handles sexual assault, are now working together to pass the Campus Accountability and Safety Act.


Senators Focus on Campus Assault Police Reports
Posted by On Tuesday, December 16, 2014

Previously, we have written about victims’ reluctance to report campus sexual assaults to the police. Finding the solution to that problem is front and center in the debate about how schools and the criminal justice system should be handling cases of sexual violence. This debate set the stage for a hearing held last week by the Senate Judiciary Subcommittee on improving law enforcement’s response to campus sexual assault and the relationship between police departments and campuses.

Opening remarks at the hearings unanimously called for a different approach that will better address sexual assault victims’ fear of being revictimized when reporting these crimes.

Sen. Claire McCaskill discussed the importance of strengthening victim support systems, stating that “A victim who is assaulted on a Friday night needs to know, on that Friday night, where she can call and where she can go for confidential support and good information, which we hope gives her the encouragement to make the choice to move forward in the criminal justice system.”

Sen. Kirsten Gillibrand testified, “[O]ur ultimate goal should be that 100 percent of survivors of campus sexual assault feel comfortable and confident reporting to law enforcement . . . But, time and again, I have heard from far too many survivors of campus sexual assault that they have felt re-victimized by the process of trying to seek justice for the crime committed against them.”

Last July, together with a bipartisan group of Senators, Senators McCaskill and Gillibrand introduced the Campus Accountability and Safety Act, intended to protect and empower students and increase accountability for schools around sexual violence.

Improving Campus Response Goes Hand-in-Hand With Improving Police Response

Angela Fleischer, the Assistant Director of Student Support and Intervention for Confidential Advising at Southern Oregon University, helped create the Ashland Police Department’s You Have Options Program and Southern Oregon’s Campus Choice. Fleischer said at the hearings that “The need for programs like these is urgent and undeniable . . ..”

According to Fleischer, improving the campus response goes hand-in-hand with improving the law enforcement response. To improve reporting of sexual assault, she urges both campus administration and law enforcement to start by training anyone who interviews victims on trauma informed interviewing techniques. By creating a coordinated victim-centered approach, the You Have Options and Campus Choice programs have more than doubled reporting of sexual assault in their jurisdictions.

This approach also focuses on collecting information about offenders in the community by allowing victims to come forward and report in the manner in which they are most comfortable, whether it is anonymously, in person, or online. Besides having control over reporting, victims also decide the timeframe and scope of the investigation with the option to suspend the investigation at any time.

Best Practices

Speaking from the perspective of law enforcement, Kathy Zoner, Chief of the Cornell University Police, offered best practices that can be adopted on all campuses:

  • Adopt victim-centered and offender-focused response procedures;
  • Prioritize medical and advocacy resources for every victim who reports a sexual assault;
  • Provide non-victim-blaming education to community members within the agency’s jurisdiction;
  • Train and hold accountable every member of the participating agency – sworn and non-sworn – for the same victim-centered and offender-focused response; and
  • Promote an environment within the agency where victims of sexual assault are not judged or blamed for their assault and instead are treated with dignity, sensitivity, and courtesy.

Creating a New System

Peg Langhammer, Executive Director of Day One, Rhode Island’s sexual assault coalition, told the committee that what’s needed is to create a new universal system such as the You Have Options program. According to Langhammer, “We can’t expect victims to report when the system in place doesn’t work . . . So the question is not, should colleges be mandated to report these crimes to police? The question is how do we create a system where the victim’s choices are the priority and the process is designed to work in the best interest of the victim?”

Langhammer recommends a new system made up of a team of representatives from law enforcement, prosecution, victim advocates, medical professionals, and higher education that is responsible for handling sexual assault cases from the initial report to investigation and resolution.

According to Langhammer, “The college hearing process should be integrated with law enforcement. Police need to be involved, but it has to be a team approach.”

Cooperation and Education

Senators Grassley, McCaskill, Gillibrand, and Whitehouse all pledged to work with the new Congress to pass the Campus Accountability and Safety Act, which would require schools to enter into a memorandum of understanding with local law enforcement to define their respective responsibilities and to share information in sexual violence cases, “when directed by the victim.”

Meanwhile, Philip Cohen, Professor of Sociology at the University of Maryland at College Park, argues that an institution’s “most important obligation and best hope for solving the problem: educating students to change the culture around sexual violence.”


Weekly Roundup
Posted by On Friday, December 12, 2014

For this week’s roundup we bring you the latest news from the Senate and the Department of Justice’s report on sexual assault.

Senate Hearings on Campus Sexual Assault

On Tuesday the Senate Judiciary subcommittee on crime met to discuss campus sexual assault. Senators expressed concern with the way campus sexual assaults are handled by universities and colleges, with several lawmakers questioning the role of the police, or lack thereof, in investigating assaults. Additionally, both Sen. Kirsten Gillibrand and Sen. Claire McCaskill expressed concerns about how the fall-out from Rolling Stone’s now-controversial article on an alleged gang rape at UVA  might affect efforts to fight campus sexual assault at UVA and other schools. Senator Gillibrand said, “And I hope it will not discourage other students from coming forward because it is the students themselves all across the country who are demanding reform and their voices are vital in this debate. And I refuse to let this story become an excuse for Congress to do nothing and accept a broken system.”

Senate Will Move Forward with Campus Sexual Assault Bill in the New Year

One thing the Republican take-over of the Senate will not affect in the new year is Senate plans for bills to combat college sexual assault. Indeed, Republican co-sponsor of the Campus Accountability and Safety Act Chuck Grassley is set to become the chairman of the Senate Judiciary Committee when Senate Republicans take control of the Senate next year. Said Grassley, “Obviously, this is something we are going to deal with or I wouldn’t be putting my name on a bill. I would think it’s a major issue.”  As we’ve previously reported, the CASA legislation would increase support and resources for victims and survivors, including the creation of a new confidential advisor position at all colleges and universities.

The DOJ Report on Sexual Assault

The Department of Justice has released a report on sexual assault and rape among college-aged females. Their findings are sobering, as might be expected. According to the report, “Fewer than one in five female student and non-student victims of rape and sexual assault received assistance from a victim services agency,” a finding that reinforces the need for a victim-centered approach . The DOJ also found that college-aged women were more likely to experience rape and sexual assault than any other age group, that women not in school were more likely to be assaulted than their peers in college, and that young women in school were less likely to report their assault to law enforcement.


Weekly Roundup
Posted by On Friday, November 21, 2014

Mandy Van Deven reports on the factors that keep schools silent on sexual assault and harassment, a new niche arises for attorneys defending young men accused of sexual assault, and the Association of American Universities plans to conduct its own campus climate survey.

Why Wouldn’t School Administrators Want to Talk About Sexual Assault?

Journalist Mandy Van Deven filed a report with Newsweek, as part of a crowdfunded reporting project to examine how schools respond to sexual assault and harassment against their students. In this report, Van Deven examines some of the factors that discourage schools from discussing sexual assault and harassment. She points to the unfortunate fact that teachers don’t have the tools to have meaningful conversations about sexual harassment. Furthermore, schools that do a better job reporting sexual misconduct may have higher reported rates of assaults and thus appear to have worse problems than other schools with less rigorous reporting and enforcement. She also points to the fact that no school has ever actually lost funding under Title IX. Van Deven’s work on this subject continues and we’ll be reporting on the project in future posts.

Attorneys for the Accused

As the pressure on schools to take substantive action to prevent sexual violence increases, so does the number of accused perpetrators who are arguing that their civil rights were violated in the process of investigations and disciplinary hearings. The result is a rapidly growing legal specialty: Lawyers who represent young men disciplined for sexual misconduct. These lawyers claim that basic due process rights such as the right to cross-examine witnesses and present a defense are being lost in the rush to do something about campus sexual assault. In many cases, they are using laws like Title IX on behalf of accused perpetrators, claiming that their clients are being discriminated against because they are male. Critics have pointed out that turning a conduct hearing into an adversarial proceeding with lawyers representing students accused of sexual misconduct can further confuse the process, getting schools into even more trouble with Title IX. Columbia University has addressed this problem by offering free legal help to both parties, but the university’s special adviser on sexual assault prevention and response says, while “lawyers can help protect the rights of accused students . . . they come at a potential cost” to what is supposed to be an educational process.

The Association of American Universities Climate Survey

The Association of American Universities plans to develop and conduct an anonymous campus climate survey regarding sexual misconduct for those AAU members that elect to join the survey for about $85,000 per school. The survey will be conducted in April of 2015 and aggregated results will be published the following fall. According to the AAU president, Hunter Rawlings, part of the goal behind the project is to preempt a Congressional mandate “that every campus conduct a government-developed survey in the near future, which will likely be a one-size-fits all survey that does not reliably assess the campus culture on this issue.” Although Sen. McCaskill, author of a bill that would require surveys administered by the Department of Education for all institutions of higher education, has praised the survey, critics suggest that a survey whose results will be published in aggregate only is a convenient out for institutions that might otherwise have to provide campus-level data,which would allow students and parents to compare results between schools.


How Can Campuses Improve Reporting?
Posted by On Monday, November 17, 2014

After schools released their Annual Clery Reports last month, it became apparent that the number of reported sexual assaults was on the rise. But rather than interpreting these numbers as a crime wave on college campuses, most experts saw the increase as a good sign. It meant that awareness about sexual assault was spreading on campuses, reporting procedures were improving, and survivors felt more comfortable coming forward. As the headline at the Huffington Post announced, “Colleges are Reporting More Sexual Assaults, And That’s A Great Sign.”

But if schools want to improve reporting even more, what are some steps they can take to make it happen?

Inform Students What Constitutes Sexual Violence

The reasons survivors of sexual violence choose not to report their assault to the police are complex and varied. There are of course obvious factors like the availability and accessibility of resources. Other important factors that can influence the decision to report include shame, fear of retaliation, distrust of authorities, and cultural or familial pressures.

Research also suggests, however, that how students understand an incident influences whether or not they report. According to the Campus Sexual Assault Study (2007), the most common reasons for not reporting were related to individuals’ perception of the incident. Over half of all victims who didn’t go to the police said they didn’t think the incident was serious enough to report and over a third didn’t report because they were unsure that what they experienced was a crime.

Similarly, when studying the informal disclosure of intimate partner violence, researchers Kateryna Sylaska and Katie Edwards found that the motives the survivors attributed to their partner’s violence also mattered. When individuals attributed their partner’s violence to “anger or jealousy” they were more likely to talk to someone than when they attributed that violence to “controlling, protecting, or a loving motive.” This research points to the importance of teaching students what behaviors qualify as sexual assault. Many students simply don’t know.

Train Your Campus on How to Respond to Disclosures

Most survivors, however, do tell someone about their assault. It’s just that most choose not to go to the police, campus authorities, or formal support services. For example, according to the Campus Sexual Assault study, while only 16% of physically forced sexual assault victims and 8% of incapacitated sexual assault victims visited a formal support service, and a paltry 13% and 2% respectively went to a law enforcement agency, 70% and 64% disclosed to someone close to them: a friend, family member, roommate, or intimate partner. Thus, if we wish to help survivors, it might be worthwhile to train students, faculty, and staff on how to respond when someone discloses a sexual assault to them. These informal support networks can also give survivors information about physical and mental health services they need and act as conduits to other university resources.

Give Survivors Choices

Finally, it’s important to keep in mind, that not all responses to survivor’s disclosures are equally helpful. Some can dissuade them from seeking further help or even re-traumatize them. In their research, Sylaska and Edwards discovered some important facts about what reactions survivors found helpful.

Helpful reactions included

• providing emotional support,
• allowing the victim to talk about the abuse, and
• providing practical or tangible support (like a place to stay).

Negative reactions included

• pressuring the victim to act in a certain way,
• not taking the violence seriously, or
• blaming the victim.

Survivor responses to advice were mixed. Advice was helpful when sought, the researchers found, but unsolicited advice felt frustrating and disempowering. This is why pressuring a survivor to report can actually be harmful. After all, a survivor’s goals don’t always align with formal reporting. As one activist explained, “a survivor’s number one priority is not necessarily to get their perpetrator arrested, it’s about moving forward and feeling safe in one’s community and healing.” Indeed, one ongoing controversy currently debated on college campuses is the extent to which faculty and staff are required to report to higher ups when students disclose a sexual assault to them. Advocates worry that requiring employees to report takes control away from survivors, potentially inflicting more distress on them.

Given the emphasis on supporting survivor autonomy, however, there is a hopeful shift at some schools and police departments to a victim-centered approach, which focuses on the needs of the survivor. New York Magazine recently profiled the program “You Have Options” developed by Police Detective Carrie Hull for the Ashland Police Department. You Have Options gives survivors more control over their case, including the whether to pursue the complaint as an “anonymous tip or a full criminal investigation” and the option to “upgrade or downgrade their investigation at any time.” The program also follows best practices regarding interviewing victims and ensuring they are well supported throughout the process. Indeed, Hull’s original aim was to create a space where victims felt comfortable talking to the police. “We found we needed to get people to a place they didn’t feel like they were being pulled or pushed through the process,” Hull elaborated in the  article. “And instead they were leading the way.”

During Senator Claire McCaskill’s third roundtable on campus sexual violence, Hull talked about the program and her initial reservations that giving victims more control might hinder police from catching perpetrators. But she soon realized that this mindset was exactly wrong. The victims are “never responsible for the offender doing that next offense,” she explained. “The offender is responsible for that next offense, not the victim…what I think we have to realize is that we are doing something about it by allowing a survivor to enter the criminal justice system in the way that’s right for them” (1:02:46).

And Hull’s approach has had overwhelming positive results. According to New York Magazine, reports have increased by 106 percent since the program officially began last year. “We shifted our focus as a team to what does a survivor want, and out of that came better healing, but also identifying way more perpetrators,” Hull said.

A similar program has now been developed at the Southern Oregon University in Ashland and Hull’s program served as the model for proposals in Senators Claire McCaskill and Kirsten Gillibrand’s Campus Accountability and Safety Act. Perhaps You Have Options can serve as an example for other programs around the country.

 


California’s New Consent Law: Yes Means Yes vs. No Means No
Posted by On Wednesday, October 1, 2014

Once again, California is at the forefront of addressing a difficult societal problem with a controversial new law. In February, State Senators Kevin de Leon and Hannah-Beth Jackson introduced SB 967 into the California Senate. The bill sought to establish a standard of affirmative consent (or “yes means yes”) at colleges and universities across the state.

In their op-ed, Gloria Steinem and Michael Kimmel call the “yes means yes” consent standard in California’s Senate Bill 967 a “welcome game-changer in understanding and preventing sexual assault.” They argue that replacing the “no means no” standard erases the presumption, “Unless one hears an explicit “no,” consent is implied.”

The Foundation for Individual Rights in Education (FIRE) says SB 967 “would render a great deal of legal sexual activity into ‘sexual assault’ and imperil the futures of all students across California.” FIRE argues there is “no practical, fair, or consistent way” to determine if the legal requirements for consent were met.

Another op-ed argues the new law is “a victory for some campus feminist activists but an ill-conceived detour for feminism,” because making consent the only consideration ignores the “misogyny, gender inequality, alcohol, race, and class that make up the rape culture on campuses.”

Amid this controversy, on Sunday, September 28, 2014, Governor Jerry Brown signed SB 967, which provides a detailed definition of consent to sexual activity for college students that becomes law on January 1, 2015. The California State University and University of California systems supported the bill and already adopted policies with similar definitions of consent.

Under the new law, postsecondary schools that participate in state student financial aid programs will be required to adopt a policy that defines consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Policies also need to define what consent is not:

  • lack of objection or resistance does not mean consent
  • silence does not mean consent
  • consent can be revoked at any time
  • an existing dating relationship or previous sexual relations between the persons involved does not by itself mean consent

The law also provides that being drunk or reckless, or failing to take reasonable steps to get consent, will not excuse someone who mistakenly believed the other person consented to sexual activity. Additionally, the person making sexual advances will be responsible if they knew or should have known that the other person was:

  • asleep or unconscious
  • incapacitated by alcohol or drugs to the point that they did not understand the fact, nature, or extent of the conduct
  • unable to communicate because of a mental or physical condition

In addition to a universal standard for determining consent, SB 967 requires specific adjudication processes that will provide more consistent results across schools, including:

  • applying the preponderance of evidence standard to decide complaints involving sexual misconduct against a student
  • investigating sexual assault complaints that involve drugs or alcohol
  • developing protocol for victim interviews
  • contacting and interviewing the accused
  • identifying and interviewing witnesses
  • responding to stranger and acquaintance sexual assault

For campus officials who investigate and adjudicate complaints involving sexual misconduct, schools must provide comprehensive, trauma-informed training programs. Moreover, retaliation against anyone who participates in an investigation or report of sexual misconduct is prohibited, nor can they be disciplined for student conduct violations, such as underage drinking, unless the violation is “egregious.”

Schools are also required to adopt “detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student . . ..” These policies need to cover:

  • protecting the confidentiality and privacy of the individuals involved
  • assisting victims by providing information about available on- and off-campus resources to support their recovery and reporting options (law enforcement and confidential reporting)
  • providing information about preserving evidence for potential criminal proceedings

To the extent feasible, schools must enter into agreements or partnerships with on- and off-campus organizations that provide counseling, health services, victim advocacy, and legal assistance for both the victim and the accused.

Finally, the new law requires comprehensive prevention programs to educate students about the institution’s sexual assault policies, including a practical understanding of the affirmative consent standard, and students’ rights and responsibilities under the policy. The prevention program is required to be part of every incoming student’s orientation.

While this law only affects California colleges and universities, schools across the country should take notice since many of its provisions mirror The Campus Accountability and Safety Act (CASA) legislation introduced by Senator Claire McCaskill on July 30, 2014. We’ll be following debates on the CASA bill when Congress reconvenes after the November elections.