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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.)


Campus Climate Surveys: Published Data & Results
Posted by On Thursday, August 6, 2015

As the desire for Sexual Assault Climate Surveys builds momentum on college campuses, important information can be gathered from schools who have already implemented surveys. Our first post on climate surveys last week described the purpose of climate surveys and some initial resources to consider if you’re looking to implement a survey on your campus.

Barnard College (Barnard), University of Chicago (UChicago), University of Michigan (Michigan), Massachusetts Institute of Technology (MIT), and University of Nevada-Reno (UNR) have all published results from campus climate surveys they’ve implemented on their campuses in the last few years. All of the schools except for Michigan sent out a survey to all students on their campus. and the response rates ranged from 28% to 35%.  Michigan sent out their survey to a random representative sample of 3,000 students and received a response rate of 67%. Each school had a higher response rate for self-identified females than males by 9-11%.

Below are a few summarized take-aways from the reports of these five schools.

  • Over 80% of women report hearing sexist jokes or remarks since being in college.
  • Of those who have been sexually assaulted, anywhere from 45-65% say that they told someone about the experience, however only 3-5% officially reported the assault.
  • Anywhere from 8-10% of women report experiencing non-consensual sexual penetration since being in college.
  • Over 60% of students report having a friend who has experienced sexual assault.

In April, the Association of American Universities partnered with Westat to develop a sexual assault climate survey for 28 (included Dartmouth, a non-AAU member) of its member universities to implement on their campuses. The same survey will be used for all 28 campuses, and the AAU has committed to publishing aggregate data across all survey users. A results comparison just from Barnard, UChicago, Michigan, MIT, and UNR shows that there will likely be similar outcomes across campuses, despite unique campus demographics. These consistencies lead to the conclusion that sexual assault on college campuses is an epidemic rather than many isolated incidents. Hopefully the new survey data will propel educators, policy-makers, parents, and other stakeholders into action to create societal change around the climate of sexual assault both on and off college campuses.

Our third post in the Campus Climate Surveys series will come out next week, detailing what research and experts are saying about the importance and potential impact of these surveys.


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.”


Recent State Laws: From “Campus Carry” to “Enough is Enough”
Posted by On Tuesday, June 30, 2015

Our primary focus has been on federal legislation to address campus sexual violence, including the pending HALT and CASA bills, as well as the Violence Against Women Reauthorization Act of 2013 regulations that become effective July 1, 2015.

However, there have been a number of recent state law developments that pose additional challenges to many school administrators across the country. Below is a snapshot of some of the current state requirements for responding to and preventing campus sexual violence.

California
Previously, we reported on California’s “Yes Means Yes” law, which requires California’s colleges and universities receiving state funds for student financial aid to adopt a policy that defines what does and does not constitute consent to sexual activity. The law also has a July 1, 2015 deadline to have policies in place to ensure reports of violent crime, hate crime, and sexual assault received by campus security authorities are immediately disclosed to local law enforcement. To help schools comply with this requirement, California Attorney General Kamala Harris released a Model Memorandum of Understanding, which Harris said “will help break down silos between campuses and law enforcement agencies to provide sexual assault victims with the help they need and hold more perpetrators accountable.” This MOU adopts best practices for collaboration between school officials and law enforcement agencies, including: clarifying their respective duties following an assault, working together to connect victims to services, and providing regular training for campus and law enforcement communities.

Colorado
On May 4, 2015, Colorado Governor John Hickenlooper signed HB 15-1220, which requires agreements between public and private colleges and universities and medical or other facilities where sexual assault victims can receive medical and forensic exams. Schools also need to make transportation to these facilities and referrals to advocates available to victims, and have sexual assault training and response policies.

Connecticut
Over the past several months, Connecticut has enacted laws to:

  • allow an anonymous reporting option, and require annual reports to the legislature on the school’s policies, victim rights, crime reports, and the number of disciplinary cases with final outcomes (HB 2059)
  • require memoranda of understanding with community-based assault crisis service centers and domestic violence agencies (HB 6695)
  • require sexual assault forensic examiners to provide care and treatment to victims of sexual assault at school health care facilities (SB 966)

Connecticut Senate Bill 636 is currently pending, which would establish an affirmative consent standard similar to California’s to be applied in sexual assault and intimate partner violence cases.

Illinois
Both Houses of the Illinois legislature have passed HB 821, the Preventing Sexual Violence in Higher Education Act, requiring colleges and universities to adopt comprehensive policies to address campus sexual violence. If signed by the governor, this Act will require schools to provide survivors’ notification of their rights and options, confidential advisors, and emergency and ongoing support. In addition, schools would need to establish one procedure to resolve complaints and provide sexual violence awareness training and education.

Maryland
Effective July 1, 2015, HB 571 requires colleges to:

  • conduct climate surveys on or before June 1, 2016, and every two years thereafter
  • submit reports to the Higher Education Commission on sexual assault data gathered, including number of complaints received, disciplinary action taken, and victim accommodations made, beginning on October 1, 2016, and every two years thereafter
  • pursue agreements with local law enforcement and local rape crisis programs
  • provide amnesty from code of conduct violations for alcohol or drugs to students who make good faith reports of sexual assault and witnesses who participate in investigations

Effective October 1, 2015, Maryland SB 477 adds victims of dating violence (who have had a sexual relationship with the offender within the past year) to the list of persons eligible for protective orders that provide broader protection for a longer period of time.

Minnesota
Effective January 1, 2017, the Higher Education Omnibus Bill requires public and certain private institutions to adopt policies that:

  • allow victims to decide if their case is referred to law enforcement
  • protect victims’ privacy
  • provide health care or counseling services, or referrals to services
  • prohibit victim blaming and retaliation
  • grant amnesty from drug or alcohol conduct violations to students who make good faith reports of sexual harassment, including sexual violence
  • establish cooperative agreements with local law enforcement
  • establish an online reporting system that allows anonymous reports
  • train investigators and persons adjudicating sexual assault complaints
  • train students within 10 days after the start of a student’s first semester of classes
  • annually train persons responsible for responding to sexual assault reports
  • designate a staff member at student health or counseling centers as a confidential resource

New York
New York’s “Enough is Enough” bill has passed both houses and is expected to be signed by Governor Cuomo. This legislation codifies a sexual assault prevention policy already adopted by all 64 SUNY campuses, requiring public and private colleges and universities with New York campuses to adopt policies that:

  • define consent as a clear, unambiguous and voluntary agreement to engage in specific sexual activity
  • grant immunity for students reporting incidents of sexual assault or violence from certain campus policy violations, such as drug or alcohol use
  • provide a Bill of Rights to all students, informing them of their legal rights and available resources, including outside law enforcement
  • require comprehensive training for administrators, staff, and students

North Dakota
Effective August 1, 2015, Senate Bill 2150 was signed by North Dakota’s governor, making it the third state (see North Carolina General Statutes § 116-40.11 and Arkansas Act 1194) to allow students facing suspension or expulsion the right to be represented by an attorney or non-attorney advocate who may fully participate during disciplinary proceedings involving matters other than academic misconduct.

Oregon
Effective June 10, 2015, HB 3476 prohibits disclosure of communications with victims of sexual violence when they seek help from counselors and advocates unless the victim consents.

Effective January 1, 2016, SB 790 requires school districts to adopt policies that incorporate domestic violence education into training programs for students in grades 7-12 and school employees.

Texas
On June 13, 2015, Texas Governor Greg Abbott signed a “campus carry” bill into law, which allows students who are 21 or older to carry concealed firearms on public and certain private college and university campuses. Before the law goes into effect on August 1, 2016, Senate Bill 11 allows school administrators to designate gun-free zones on campus and establish rules for storing handguns in dorms and other residential facilities, but those restrictions may not generally prohibit students from carrying handguns on campus.

Virginia
Enacted April 15, 2015, SB 712 requires specific action when responsible employees receive information about sexual violence, including:

  • the information must be reported to the Title IX coordinator “as soon as practicable after addressing the immediate needs of the victim”
  • the Title IX coordinator must meet within 72 hours with the review committee, which includes representatives of law enforcement and student affairs
  • if the allegations involve felony sexual assault the law enforcement representative must consult with a local prosecutor within 24 hours (however, personally identifiable information about persons involved will not be disclosed unless it is necessary to protect the victim or others)
  • schools must have a memorandum of understanding with a local sexual assault crisis center or other victim support service to connect victim with those services

Additionally, SB 1193 enacted on April 30, 2015, requires schools to include a “prominent notation” on the academic record of anyone who is suspended or dismissed for a sexual violence offense, or withdraws while under investigation. However, the notation will be removed if the student completes the disciplinary action and is thereafter deemed a student in good standing.

Washington
Effective July 24, 2015, Washington’s SB 5518 requires:

  • all institutions of higher education to establish one disciplinary process for sexual violence complaints
  • four-year institutions to conduct campus climate surveys to assess the prevalence of campus sexual assault, evaluate student and employee attitudes and awareness of campus sexual violence issues, and make recommendations for addressing and preventing sexual violence on and off campus
  • report survey results to the legislature by December 31, 2016
  • report on steps taken to enter into memoranda of understanding with local law enforcement by July 1, 2016

The Washington Student Achievement Council will also work with schools to develop rules and guidelines to eliminate gender discrimination, including sexual harassment, against students.


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, May 8, 2015

For this week’s roundup we have two different articles focusing on different aspects of the data released last Tuesday by the Department of Education and a list of seven things to know about CASA from the National Law Review.

Good News: The Number of Reported Sexual Assaults is Up

The data released by the Department’s Office for Civil Rights (OCR) and the Federal Student Aid office (FSA) last Tuesday in response to a request from Senators Barbara Boxer, Kirsten Gillibrand, and Tim Kaine, confirmed a trend we’ve noted earlier —the number of reported sexual assaults on college campuses has been and continues to increase dramatically. In 2009, 3,300 assaults were reported. In 2013, there were over 6,000 reports. As we and others have covered extensively, this is a positive development in the fight against campus sexual violence, suggesting that increased awareness has made students feel more comfortable reporting incidents of sexual violence than they did in the past. However, as pointed out by this article from the Christian Science Monitor, the number of reported assaults still trails far behind the numbers reported in anonymous surveys, indicating there is still much work to do.

Bad News: The Length of OCR Investigations is Also Up

One unfortunate side effect of the federal government’s aggressive efforts to address campus sexual violence is a dramatic increase in the average length of Title IX investigations. The same report discussed in the above story reveals that the average OCR investigation now takes 1,469 days—around four years, meaning that even a student who filed a complaint as a freshman would graduate before the investigation was resolved. As this piece from Bloomberg Business points out, there are serious consequences of an investigation dragging on that long—solutions to the problems that led to the complaint are delayed, the facts of the pertinent cases become more difficult to ascertain, and victim/survivors are denied closure. However, as the renewed focus on sexual assault leads to more and more complaints and investigations, the OCR has seen its budget cut — reducing its full-time staff from 1,148 to 544 between 1980 and 2014 — contributing to delays and a backlog of cases.  The President’s budget proposal and Senators Kaine, Boxer, and Gillibrand have called for increased funding for the OCR.

The National Law Review Tells You What You Need to Know About CASA

If you follow this blog regularly you’ll have seen this analysis of the Campus Accountability and Safety Act, the proposed law with bipartisan support that would introduce new, more stringent regulations for how colleges and universities handle sexual harassment and violence. The article above, published by the National Law Review, highlights seven aspects of the proposed law you should be aware of, including increased fines, a Campus Climate Survey requirement, and broader reporting requirements.


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.


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.