College Judicial Consultants

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Archive for the tag “sexual assault”

Apples and Oranges—Sexual Assault as a Judicial Issue (pt. 2)

There is a lot of understandable outrage from sexual assault and interpersonal violence advocates about the way they see assaults mishandled on college campuses. The criticism I hear most often is that since sexual assault/rape is a crime it should be handled by the police and the criminal justice system. They worry that a college will mishandle things or pressure a victim, and that the victim will not be able to avail herself of the criminal courts. As a result, they fear that the rapists and assaulters on campus will go free or, if they are punished they will get a slap on the wrist compared to what would happen if things were handled “correctly.”

Let’s be clear—recent history has given these advocates a lot of cause for concern. I have already discussed investigations about the way very prestigious schools have mishandled sexual assaults and the reporting of incidents, and those failures (along with the other anecdotal ones any advocate can tell you) have engendered an understandable belief that schools are actively (or at least negligently) silencing reports to make themselves look better.  After all, they only have to report sexual assaults they know about so the less they know the fewer “occur,” and the safer their campus will seem to prospective students and their families. Since I do not know the actual story at any of these schools, I do not want to comment on their intention. I have already talked about how a bad system can hurt victims; however, the college judicial system is no worse than any other system and in some cases has distinct advantages for a victim. If you believe that the solution to the problems with some judicial systems on some campuses is to eliminate their ability to hear these cases, you will be hurting more victims that you help.

As a hypothetical, let’s say that a victim comes forward and says that she was sexually assaulted at a party in an off campus apartment. She says that she went there because she liked one of the guys that she knew from class, but since she was nervous she drank more than she normally does and got very drunk. While she remembers flirting with the guy she liked, she doesn’t remember much after she played a drinking game with “jungle juice” but that she woke up in his bed with him and knows they had sex. When she woke up and realized what happened, she freaked out because she would NEVER have had sex with him. In fact, she is known as a good girl, and that has made her somewhat of a challenge to the boys that know her. When the boy woke up he was being very nice as if nothing was wrong, and offered to take her to breakfast and asked if she would spend the day with him. She made up some excuse she can’t remember and went back to her dorm. A week later her RA brought her to the sexual assault advocate’s office when she heard what happened.

There are much more “horrific” cases that occur on a college campus, but do not be confused—this is sexual assault. Situations like this were the majority of cases that came to me as a judicial officer-ones where the extent of the sexual act was never a question, the victim and attacker knew each other (and often in a positive way prior to the assault), and alcohol was involved. In these cases a victim is often unsure about what she wants to happen to her attacker. There are times where she wants him thrown in jail, times where she wants him kicked off campus, and times where she only wants him to understand what he did to her so that she can “move on.” In fact, I have had more victims back out when they thought their attacker would be suspended or expelled than I have victims back out because of an uncertain outcome. So how do you advise her?

If she wants him held accountable there are three roads she can take. If she decides to go the criminal route she may be able to get him arrested, thrown in jail, and if the case is successful he may face time in prison. However, she has very little control over what happens in the case, it can take a long time, a victim is often kept out of the loop, and in the type of situation described above many DAs will not prosecute. She could decide to sue him, but this option is expensive and takes even longer. Finally, she could decide to bring him up on campus judicial charges. While this option would  result in a much smaller consequence for the attacker (i.e., even if he’s expelled that’s much better than prison,) but the hearing will likely be confidential, she will be allowed to dictate much of what happens, and she can surround herself by the resources set aside for victims in these cases. That is at least true in good systems. Most importantly, if she chooses to use the campus judicial system she can still decide to use the other two because choosing that option does not in any way prevent her from changing her mind and also using the criminal or civil systems.

I know there are many survivors, victims, and advocates that don’t think the above benefits make the judicial system worth it, and will never accept that the system is “effective.” However, I think “effectiveness” should be defined by how a victim’s desired outcomes are met, and by the level to which a system can avoid revictimization. If you want to look at the systems based on their failures, none of them are “effective.” If you want to look at them by their successes, each of them can be. However, I believe that if you look at them as distinct and often not mutually exclusive options, the campus judicial system has the most potential to be victim-focused, minimize revictimization, and meet the victim’s desired goals to allow her to continue healing.

Of course, that’s only true in good systems.

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 This is a plug. If you do not want to read a plug for services, stop now! We will still adore you.

For the 2013-2014 school year we are going to be offering a victim assistance package to advocacy offices on campus. This will include:

  1. Serving as an on-call judicial resource for unlimited complainants for one academic year.
  2. Allowing the extent and nature of the assistance to be completely determined by victim and/or the advocate including maintiaining as much anonymity as a victim desires.
  3. Helping the victim build the most effective case against the attacker possible.
  4. Allowing advocates to exclusively focus on support.
  5. Identifying situations that may require outside legal involvement (e.g. a denial of due process, forced mediation, etc.)
  6. Reviewing the sexual assault policies, and offering recommendations for improving them.

We are in the process of ironing out the details, but if you want to retain our services we will charge half of what we would charge when these services become publicized in August. For less than the cost of hiring an outside investigator for one case, we will help as many victims as possible build strong judicial cases. We believe this will increase the numbers of cases that are heard, help advocates prove there is a problem on their campus, and by removing much of this responsibility from the advocate it will increase the trust and support between them and the victim. Contact DaveK@CollegeJudicialConsultants.com with any question or to discuss costs.

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How to Fix The College Discipline System for Sexual Assault Cases

NYT article

Click here for the NYT article on the issues at Swarthmore and Occidental.

Colleges and universities are under scrutiny their (mis)handling of sexual assault and interpersonal violence (IPV) cases. High profile schools are being investigated for violating victims’ rights, while at the same time there is a growing movement advocating for increasing the rights and protections of the accused. There have been calls from both sides to take these cases out of the college judicial process and leave it to the courts, but all that will do is take options away from the victim and result in even fewer perpetrators facing accountability.

Both sides are correct—colleges are not equipped to handle these cases. However, it is not because the judicial systems are inherent flawed or a lack of awareness by the people involved—it is because it is impossible to have a system  fair to both parties when the people responsible for the different aspects of the case have other interests and responsibilities. To ensure the disciplinary process is followed and fair, a school should hire outside entities to handle the three major components of a case, and allow the college administrators to focus on their responsibilities.

By necessity there will be oversimplification of the issues to make this piece’s length manageable, but I am operating under several assumptions:

  1. Judicial administrators (JAs) and board members want to have a fair system that reaches the right result and do not intentionally revictimize or perpetuate rape myths.
  2. The college judicial system is the lowest barrier accountability system available to victims.
  3. Colleges have dedicated professionals in place to assist victims of interpersonal violence through the process as their only or primary responsibility. (This is more rare than the assumption suggests.)

(In addition, I am only discussing student on student IPV cases and will be gender normative-using “she/her” for victims and “he/him” for perpetrators even though I recognize that these roles are not absolute.)

There are four essential components to any case: the case preparation for each side, the investigation, and the hearing. Each requires a rigid activist committed to the perfect execution of their responsibilities in order for them to be successful. However, each of those by necessity encroaches on the other components.

A victim will have to answer questions she does not want to answer to aid in an investigation, a respondent may be moved or transferred out of a class to protect the victim, the opportunity to confront the accuser by definition hurts the victim, etc.

A victim will have to answer questions she does not want to answer to aid in an investigation, a respondent may be moved or transferred out of a class to protect the victim, the opportunity to confront the accuser by definition hurts the victim, etc.

For that reason, there should be 3 professionals exclusively dedicated to these components without regard or responsibility for the other 2, but with a good relationship with each other in order to assure equal advocacy, transparency and fairness. The JA should “only” be responsible for ensuring due process is followed at a hearing, and that each of the three advocates are engaged in a timely manner. While the JA might be able to assume an additional responsibility (and currently may do all of them,) the only way the JA can be responsible for ensuring fairness and due process is if there is someone else who can fully advocate for each side without concern for the other or for the school’s liability.

Simply put, it is impossible for a school to reduce or eliminate its liability in these cases without outsourcing the advocacy and investigatory responsibilities. As long as an “agent” of the school is working with one side in preparing a case, the school remains at risk of liability from the other side. Schools know this, so even victim advocates are pressured to limit their work to connecting victims with resources and, in the best systems, advocating for “one-sided” accommodations. The advocate may also provide excellent advice in preparing the case, but he or she does so knowing that if the respondent sues that assistance may be used against the school. The victim and respondent advisora needs to be separate from the university, intimately familiar with the college judicial process, and have a good and open relationship with the support resources on campus.

Providing equal and external assistance is crucial since the basis of most claims against a college is “inequitable resources” that resulted in an outcome that breached the school’s duty of care. It is also important that the “outsourced” group not be attorneys and/or not be acting as an attorney to prevent the process from becoming de facto litigation. The judicial process is not a legal process and while these resources will help the parties prepare their cases, get ready for the hearings, and protect their rights and interests it will remain up to the students to present their cases through whatever system is in place.

The last component necessary to increase the fairness is a competent external investigator for each allegation that can interview the parties involved, meet with witnesses, ensure that all evidence is collected, and then prepare a report on those findings to help the parties prepare their statements and/or the board reach a decision. There are some schools, like Harvard, that have been doing this (or something similar) for years, but it is prohibitively expensive for most schools. I believe it is possible to have someone responsible for those investigations that can do them at a much lower cost (and have a few suggestions) but expecting students to gather all that information impartially and without exerting pressure on the people interviewed is unreasonable (and developmentally inappropriate.)

Engaging these outside entities will increase the likelihood that the parties will be able to present their positions fully and clearly, that as much information as possible will be available to get as close to truth and fairness as possible, and limit a school’s liability and giving them clean hands. It would be naïve to ignore the additional costs a school would bear to provide these resources, but compared to the positive impact for the students and the reduction in the liability, the costs would be well worth it.

What do you think? Are schools equipped to help each party prepare adequately while still protecting themselves? Are there other (and better) ways to approach this? Leave a comment or email me at (DaveK@collegejudicialconsultants.com). Be good and be safe.

Your Argument is Wrong, Ms. Grossman–The Realities of Sexual Assault Cases in College

Image

Click here for the Wall Street Journal Article

On April 17, Judith Grossman wrote an editorial for the Wall Street Journal describing her son’s experience with his school’s judicial system in a sexual assault case. In the article she raises some concerns about the judicial process that should be explored (and I’ll do that in Tuesday’s blog) but those points get lost because she uses straw man arguments (understandably motivated by a mother’s outrage), incorrectly states the problems, and misses the entire point of sexual assault cases on college campuses.

Sexual assault cases on a college campus are different than other types of judicial cases:

  1. Most sexual assaults between students involve a pre-existing relationship and alcohol. A victim being an “ex-lover” is not evidence in favor of accused students. In fact, predators rely on the idea that past relationships mean sexual assault did not happen, and develop these relationships prior to committing sexual assault to allow for that defense. The issue is was there consent in that particular instance. Nothing else matters.
  2. Most victims of sexual assault on a college campus do not bring cases against their attackers. Among the myriad reasons are the facts that they feel as if nobody will believe them, that they are somehow to blame (they aren’t), and that if the attacker is found not responsible that somehow means it didn’t happen. Ms. Grossman labels herself a “feminist,” but the only point of that characterization I can see is to somehow give credibility to her victim-blaming tone throughout the piece. While I do not blame her for writing as a mother, Ms. Grossman willfully ignores the overwhelming pressure against victims. This includes the very real and well-documented academic, social, and personal impact of sexual assault and the overwhelming percentages of victims that suffer in silence fearing the exact type of response in the piece.
  3. Victims that come forward and hold their attackers accountable have been shown by the FBI and DOJ to be presenting “false” accusations only 2% of the time. Even assuming Ms. Grossman’s son was victim of the incredibly rare 2%, when a victim comes forward and has the courage to see the process through the smart money is on it being true. Her characterization of this woman as a “spurned ex-lover lashing out” is dangerous because it has the very real possibility of preventing future victims from coming forward for fear that they will be classified in the same way.
  4. Title IX and the Office of Civil Rights did not eliminate the presumption of innocence. I have talked about the problem with “innocent” students defending themselves, but If her son was indeed “presumed guilty,” that has nothing to do with Title IX. If she is correct, it does sound as if her son went through a terribly unfair system that misapplied OCR’s instructions, but the instructions themselves do not eliminate a victim’s rights. (I explain the preponderance of evidence standard in these cases here.) In 2011 the implementation of Title IX, as it applies to sexual assault and other interpersonal violence cases, was explained by OCR to require a school to do something when a student comes forward as a victim of these types of crimes. This was done to address systemic issues with colleges covering up sexual assaults intentionally, “accidentally” through heavy-handed administrative responses, or by allowing a culture that perpetuates rape myths, and letting peer pressure silence the victims.
  5. Neither party is allowed an attorney. Ms. Grossman makes it sound as if her son was the only one or as if there was an attorney against her son. Neither is true. An attorney did not question her son, the board does not consist of attorneys, and in all likelihood the only person who had an attorney’s help throughout the process was her son.

There are many problems with the campus judicial system, but the case Ms. Grossman uses and the issues she has do not prove those issues. Her call for changing the system and making it more “legal” is exactly why attorneys are not helpful if you are going through your campus judicial process. While it is true that most campuses do not provide the same specific resources for accused students as victims (we offer both,) that is because the college and world communities (including most people who sit on a judicial body) do not understand these issues, and their ignorance (or outright hostility) support the accused in these cases. As a wise colleague once said only partially facetiously “they don’t need help convincing the world they’re good guys.”

Let me know what you think! I respond to all comments and all emails sent to DaveK@Collegejudicialconsultants.com.

Sexual assault and the judicial system–Advice for survivors (2 of 4)

When I was a judicial officer I was fortunate to work with an outstanding sexual assault advocacy team.  The team was me, a dedicated and highly-trained detective from Campus Police, and a Victim’s advocate from the Wellness office.  There were also several community resources available to survivors with BARCC (Boston Area Rape Crisis Center) and ATASK (Asian Task Force Against Domestic Violence) being our most common partners. The resources for survivors* were extensive, we had tremendous Chairs of the disciplinary committee that heard these cases, and I was as much of an advocate as I could be.  We had more resources available for survivors than most schools and everyone involved was dedicated to helping a survivor through the most difficult time of her** young life.  MIT received 2 Violence Against Women Act (VAWA) grants, and did great work during the time I was there.

But the system still sucked for survivors.

It wasn’t anyone’s fault (mostly), but since what happened to a survivor is so terrible, the systems in place to deal with it are inherently terrible to the person going through it.  No matter how kind we were and how sympathetic the people were, it was still an adjudicatory system that heard details about the worst night(s) in a person’s life, allowed a response to those details, and asked questions about those details.  There is a revictimization that comes with these hearings, and most judicial officers try to minimize that to the best of their ability.

Every single program on sexual assault tells people who support survivors that they need to do three things—believe them, help them understand that its not their fault, and give them as many choices as you can.  A judicial system, however, can’t do any of those things.  If it did, there wouldn’t be hearings because the converse of those things is that the accused is lying and it is totally his fault.  You could just find him responsible, expel him, and call it a day.

Of course that’s not in the least bit fair (or legally defensible) so you have to have a hearing, and that hearing process is going to be even more rigidly followed than normal cases because of the potential for litigation.  So not only do you have a system that says “prove it” to a survivor, but they have to do it in a certain way and only that way.  If someone is brave enough to come forward and initiate a judicial process, everything that has been done to return some power is then taken away so that they can attempt to have something done about the person who committed this crime against them.  Additionally, even after someone accepts that she will need to participate in the process, there is no guarantee of the outcome they desire.  In fact (and this is completely anecdotally) it is probably not going to be the outcome the survivor wants, with many accused found not responsible, or given a “light” sanction despite being found responsible for something.

The problems here do not even incorporate social pressures, the impact on academics, the disruption of a survivor’s life, and the hundreds of other things that assail them.  Even if a school’s response is amazing and there are escorts provided, the accused is moved out of a shared living situation and classes, and accommodations are made for academics, this person’s life is forever changed.  The Department of Education’s Office of Civil Rights put forth a “dear colleague” letter that attempted to “recommend” numerous steps that should be taken to ensure that sexual assault gets addressed properly and that survivors are protected, but none of us administrators have to live the survivor’s life.  [In my opinion, the best thing to have come from that letter is that schools are essentially “required” to have the lower “preponderance of evidence” standard in these cases as opposed to the “clear and convincing standard” many had for these cases.  (I wrote a piece about that earlier so I won’t go into it, but check it out if you’re curious.)]

There are way too many things that need “fixing” if a campus is going have a victim-focused response to sexual assaults, and most of those are outside the scope of this piece.  Instead I’m going to focus on a helping a distinct subset of survivors.  This piece is for those people who, in addition to whatever else they may be doing, are going to be bringing a case against a fellow student (or a student at a different school) using that school’s campus judicial system.  I wanted to provide some help for those people by offering some suggestions to help them proceed and to minimize the potential revictimization that comes with brining these cases.  In order to do so I’m making numerous assumptions that you should keep in mind as you read this.

  1. You will not use this for legal advice.  If you think “do I need a lawyer” you should either get one or contact the Victim Rights Law Center to figure it out.  This is procedural advice and strategy starting points for a campus judicial process only.
  2. I’m assuming that your campus is doing everything the way it is supposed to.  Sadly, this is not always the case.
  3. I’m assuming that some type of sexual act is not in question and the case is mostly about consent since this is the most common scenario in college cases.
  4. There are a few campuses that have independent investigators hired to handle these cases (e.g. Harvard) but I’m assuming that you have a system where some sort of hearing body handles these cases.
  5. I’m assuming you are safe.  If you believe (even if you only sort of believe and can not prove it or even explain it) that you are in current danger contact the police.  I would much rather you be wrong about the risk and have help than be right about it and do nothing.

That being said, here are some information and questions to consider that I believe will help you as you participate in your campus judicial process.  These general concepts should help you get started in most cases, but if you would like specific assistance for your particular case please contact us.

  1. Get a good support team for yourself.  I cannot know the particular resources on your campus, but let’s start with your unofficial support.  Think about your family, your friends, your sorority, your advisor, your RA, an administrator you like, your boyfriend/girlfriend, your particular spiritual guide (e.g. priest, rabbi, etc.), your roommate, etc.  From that group see if you can think of one or more people that can simply be there for you to make sure you’re okay.  Someone you can talk to, someone you can vent to, someone with whom you don’t have to be “professional” when you talk to him or her.  If you’re lucky there will be a person you can count on who has nothing to do with the process, and if you’re really lucky there will be a lot of them.  Regardless, if you can have someone there who’s only agenda is being your friend it will make the whole thing a lot easier.
  2. Get a good advocacy team for yourself. Once you have your personal support in place, make sure you like and trust your campus and community support resources.  Check your counseling center and wellness offices to see if there is anyone dedicated to these issues.  Check your community resources for centers that deal with these issues.  Look to national resources like the Victim Rights Law Center for help finding them, and/or to see what else they can offer.  Ask your RA who someone would speak to.  Ask your judicial officer.  There are going to be a lot of little things you may need, and these advocates should be able to fight for you so that you can focus on yourself and the case.  There are, or should be, many campus resources available to you and whoever you chose as this advocate should help you make sure you are getting all of them. Note that these people can be the same as your support team, but I separated them because I think there are 2 distinct roles to play.
  3. Understand each person’s ability to keep things “confidential.” Confidentiality is a tricky thing on college campuses.  Most people you speak with cannot promise to keep things completely confidential (i.e. they do not have legal protection) and some must report certain incidents to a central body.  You should be aware of each person’s willingness and ability to reveal only that information you want revealed so that you can make an informed decision of whom you are going to talk to.
  4. There is no rush (or at least not as much of a rush as you might think.)  Even in those judicial systems with a “statute of limitations” limiting the time you have to file charges, most of them allow for additional time for sexual assault cases.  Check the time in the policy, and take as much of it as you need.  Once you begin a case a school might have a timeliness requirement to resolve it (i.e. it must be heard within a certain (and brief) period of time after getting the complaint) so do not bring the case until you are ready.  Your policies should state clearly what that time is or the campus advocate should know, but don’t hesitate to ask (or have someone ask) the judicial office anonymously.  [I’ve had people create Gmail accounts with “anon30482” as their name and never hesitate to answer.] NOTE:  In some cases the accused may try to use the delay against you by claiming that you would have acted quickly if it “really happened.”  No board with any training should buy this, but you can always address it in your complaint.
  5. Understand why you are bringing the case.  This is not as obvious as it may seem.  Something bad happened to you, and I commend you for bringing the case, but know what you want out of it.  I’ve had people bring cases so that their boyfriend believed them.  I’ve had people bring cases forward so that they could know they were “right.”  I’ve had people bring cases for a number of reasons that were all valid, but you should know that the more specific the outcome you desire, the harder it will be to guarantee that the system will “work” for you.  You should bring a case for any and every reason you want, but if you will only feel good with one particular result, you may not get that result.  For example, if you want the person expelled the school may suspend him.  If you want him suspended, he may be expelled.  If you want him “punished” he may be found not responsible.  I do not know any system that can promise you a particular result, but they should ALL be able to promise you that you will be heard.  It is completely fair to expect the system to see the truth of your situation, but be careful about needing it to give you some validity.  What happened to you was terrible and in no way your fault, but systems (and people) are flawed.  Regardless of what a board decides, what happened to you is very real.
  6. What happened to you is not your fault, so what happens to the person who did it to you is not your fault either.  In my time I had many survivors say to me “I don’t to get him expelled or anything.”  My biggest problem with that is that the survivor was making it clear that she believed that if she brought a case and he was expelled that it was somehow her responsibility.  That could not be farther from the truth.  When you bring a case against someone for something they did, your job is to present the facts.  Once you do that the hearing body takes that information and decides what, if anything, can be done.  If the perpetrator is expelled it is no more your fault that it is if nothing happens to him.  The only thing you can control is the information you present.  What the board does with it is outside of your control.  While I understand that many sexual assaults occur between people with a previous relationship (i.e. they know each other) the fault for what happens to him lies with the person who committed the sexual assault.
  7. Don’t be afraid of pissing off administration.  You probably have an amazing administration that wants to do what they can for you, but not everyone is that lucky.  Administrators (especially those who can make real decisions) often have many factors they have to consider when making decisions, so they often can’t (or won’t) do what you’d like them to do.  Challenge them.  Push.  The worst thing that can happen is they get annoyed, but who cares?  This is where your advocate can really be helpful. Don’t assume that they are going to tell you everything they can do for you so if there’s something you want, ask.  They can only say no, but no matter how annoyed they get it won’t hurt your case. Something to consider is what you would like in the hearing to make you feel comfortable and safe.  Providing a screen between you and the respondent should be doable, but you may have to ask for it and then insist on it if you get pushback. If they are being REALLY unhelpful do not hesitate to suggest that you will get a lawyer.  While I normally do not like this tactic, I have no patience with people who are not willing to do simple things to mitigate the impact of this process.
  8. Know that you can pull out at any time.  This is your case.  If you decide at any point that you don’t want to do it anymore, you can quit.  While some systems may continue without you, pull out when you’ve had enough.  They can’t force you to continue, and if it isn’t doing what you want it to do what’s the point?  You have nothing to prove to anyone.
  9. Trust yourself. Dr. David Lisak’s work points out that predators create situations where they can assault someone with that very situation giving them protection from prosecution.  They isolate and intoxicate their victim so that there is self-blame and the details are hazier for the survivor than they are for them.  I have worked with many survivors who did not even realize they were “sexually assaulted” until well after the event, but they all knew that what happened was not right. If you know something bad happened to you, that’s enough. It is a completely normal feeling and very common.  It happened, it was not your fault, and it is not okay.
  10. You are going to have to tell your story, so decide how you want to tell it.  Most systems will have a written portion and a hearing.  During that time, people will make decisions based on what information they get from you and the accused.  If you do not tell them something, you can’t assume they will figure it out.  You will need to find a balance between giving them enough information to work with, and sharing information that they don’t need to know.  I used to advise people that they needed to share the outline of what happened, but that graphic details are not necessary if they made the complainant uncomfortable.  I also believe it is easier to write it out because the hearing itself is more of an unknown.  While you might be very comfortable in front of the hearing body, they might also be terrible terrible people.  If you have everything written out then you can simply reference what you wrote, and don’t have to say it out loud.  That way the information is there is something unexpected (and unwanted) happens at the hearing.
  11. Do not worry about the fact that you drank, did drugs, or anything else.  Most schools will not hold you accountable for minor violations if you are bringing a case forward.  Even if they do, those “minor violations” are usually why you were assaulted in the first place.  Do not try to cover them up. If the school really gives you a hard time, even a mediocre lawyer will make hash out of them.  The same holds true with downplaying what you did.  If you do not make it clear that you were intoxicated because you’re embarrassed or worried about getting in trouble, then the accused student can say that you were not intoxicated and therefore consented. I know there are some of you who have family or friends that may be very anti-alcohol or drugs, but if they can’t put it in perspective in this case they aren’t part of your support team.
  12. Prepare and practice. The worst part of any hearing is the surprise.  The more you can anticipate questions (even unacceptable personal ones) the better you will handle it in a hearing.  This is a REALLY hard thing to do, but if you have people you trust that you know support you, having them do it is a lot better than that 72 year old professor do it in a hearing.  This will not stop the revictimization, but it will lessen the impact.
  13. Bring the discussion back to you.  I have noticed that a LOT of cases and deliberation involve discussion on what was reasonable for the accused student to know and expect.  “She said she was drunk, but he said he didn’t know and I believe him.”  Most people put themselves in the mind of the accused and judge his actions in relation to how they would have acted.  People have a hard time coming to terms with sexual assault because they think that a lot of the problems are “common situations.”  This makes sense if you only think of sexual assault as “accidentally going to far” or “misreading cues.” However, just because it might make sense doesn’t mean it isn’t stupid.  Sexual assault is a crime and they need to think about what happened in terms of what was reasonable for you to know and expect.  I want the hearing body thinking “He said he didn’t know she was drunk, but it was 2am at a fraternity party and she only stayed over because he said she would get in trouble if she went back to the dorm.  That is not giving consent.”

Each time I work with a survivor, whether it was for a judicial issue or as an advocate, I am amazed by the strength and courage that they have.  This is not an easy process, but hopefully these points will give you a place to start.

Next:  Advice for respondents

*Note that I use “survivors” to refer to the victims of sexual assault.  There is a move back to using “victims,” but I still prefer to think of them as survivors.

**I am also using the feminine pronoun when I refer to the survivor and masculine when I refer to the attacker.  While as many as 1 in 10 men are sexually assaulted, all of my experience is with female survivors with all but 1 respondent being male. In no way is this meant to minimize the plight of the male victim or the very real problem with same-sex sexual assault.

Sexual Assault and the Judicial System (INTRO) 1 of 4

I first became aware of rape as a “real thing” after my freshman year when a good friend of mine was attacked over the summer.  It was a different time and we didn’t really talk about “date rape,” so rape to me was the stereotypical “guy in an ally” thing. So despite how horrible my friend’s rape was (and it was the stuff of nightmares) there was a randomness to it that somehow made it both more terrible and also something unlikely to happen to anyone else I knew.

It wasn’t until years later that “acquaintance rape” became a larger part of the popular dialogue.  I remember talking to women I either knew or was dating, and being stunned by the number of them that had stories-either about themselves or about a close friend.  It seemed like I actually knew more people who were assaulted than weren’t, and I was stunned. 

When I started in student affairs I didn’t really know anything about the profession.  I wasn’t even an RA; heck, not only wasn’t I an RA, but I had some disciplinary issues at both Tulane and UCONN. I had no idea what RAs or Hall Directors did, except that one wrote me up for being stupid, and I had to see the other.  What I knew, however, was that I was going to work on sexual assault because when you have a hall of 210 women the “1 in 4” number becomes too real to ignore.  By the time I started I knew that approximately 1 in 4 college women would be sexually assaulted during their 4 years.  I knew most of them would never tell anyone.  I knew most of the perpetrators would never even face disciplinary charges, much less civil or criminal cases.  I also knew that if I spoke to every male student I could find that none of them would consider themselves predators.   At the time I believed that a lot of the reasons assaults were so prevalent was because guys were naïve, inexperienced, or just dumb so I dedicated myself to educating them about not being an “unintentional rapist.”  (Program nutshell:  If you can have sex with someone at a party, but could not the day after then you’re committing sexual assault.)

Even that turned out to be wrong.  As I did programming and advocacy work I learned just how big of a problem this was.  I read a lot on masculine identity issues, sexual identity formation, and feminist theory about the consequences of the objectification in popular culture.  Most recently was  Dr. David Lisak’s work on “the undetected rapist” showing just how intentional a lot of these sexual assaults actually are.  At MIT I had a chance to help shape the disciplinary response to sexual assaults and work with our advocacy office in an attempt to lower the barrier to the judicial process for survivors/victims.    I’m proud of what we did, but over 90% of the survivors who actually sought help never came forward.  Of those who did only about 1/3 went all the way to a hearing.  So, if you assume that 60-85% of all assaults go undisclosed to anyone then the actual percentage of victims who used our system was depressingly low.  (e.g. if there were 100 actual assaults and (assuming high reporting) 40 sought help from the advocate, 4 spoke to me and 2 actually had hearings.)  The worst part about it is that we had a good system. 

When I left student affairs and started College Judicial Consultants I was really worried that I was not going to be able to remain an advocate on these issues so I have really tried to focus on reaching out to advocacy groups and offices to offer our services at a fraction of our per-incident costs to help as many people as possible.  The idea is simple—if an advocate has a student thinking about going through their system we can help them understand what the process will be, anticipate some questions, practice the actual hearing, and do all of that remotely so they can maintain as much of their anonymity as they would like.  That way the advocate would know who they are, but we could help them get the most out of their system and, hopefully, greatly reduce the revictimization of bringing a case forward. 

While we are still doing that, I thought it was worth addressing some issues for victims, accused perpetrators, and some prevention strategies.  Since I’ve been criticized for making these blogs too long I am going to break it up into 4 blogs so you can read all of them or just the ones you think apply to you.  Right now the intention is to do the next one for victims, the one after for accused students, and the last one having some individual and group risk management suggestions.  However, before I go I want to make sure I leave you with a few essential points:

  1. If you are a victim, no matter how good your school is, you should be aware of perhaps the greatest resource in the country—The Victim Rights Law Center.  They are attorneys and advocates who are experts in these issues.  If you have any questions at all about your legal rights, you should give them a call. There are offices in Portland, OR and Boston, MA with the main office in Boston.  That number is 617-399-6720.  Put their number in your phone in case you or one of your friends ever needs it.  NOTE:  They do not assist accused perpetrators of sexual assault and will likely not help you find assistance.  This is a service for victims only. While I am confident in our ability to help you in your disciplinary system, if you think there is even a remote possibility that you will want to proceed civilly or criminally, you should contact them immediately.  It’s worth contacting them even if you think you’re going to use us to have as much support as possible. Have I mentioned they are amazing?
  2. If you are the victim of sexual assault or other interpersonal violence it is not your fault.  Nothing you did or did not do gave someone permission to do anything to you without your consent.
  3. There are a lot of resources for you.  Your school likely has dedicated people who can assist you, your local community may have some advocacy centers, and most courts should have a victim’s advocate or at least be able to point you to one.
  4. The Department of Education recently came out with a “Dear Colleague” letter that “suggests” a wide range of support resources and services that your college should offer.  This includes moving the perpetrator from your residence hall, getting an escort to class, obtaining delays in academic deadlines, and a host of other resources.  While schools are at different places with the services they offer, there should be more of them than there were a year ago.
  5. I do not want to discourage anyone from seeking help, but some college personnel may believe they have a reporting requirement.  In other words, while they should keep your identifying information out of any report, they may be mandated to report that a crime of this type has happened (or at least incorrectly believe they are.)  There are ways around this, but the best advice I can give is to ask someone what their confidentiality policy is, and what they are required to report before you say something to them.  A lot of colleges are erring on the side of legal caution and WAY overstepping this requirement, IMHO.) If it will help, you can contact us and we can make some calls for you.
  6. I am in no way giving legal advice here or in the subsequent blogs.  I am going to focus ONLY on how to approach these issues using your college’s disciplinary systems.  Keep in mind that whether or not the police get involved or it goes to court, sexual assault is a crime.  If it happened to you or someone you know there are things you should do in case you decide you want to pursue those options in the future, but I am not talking about that.  If you are accused you should get an attorney ASAP to protect yourself, but I am not talking about that.  I am going to talk as if the ONLY venue to deal with this is your college’s judicial system, and anything that seems like legal advice isn’t. 

If you have any thoughts you would like me to consider while I’m writing this email me at davek@collegejudicialconsultants.com.

Next:  Advice for the complainant-survivor.

Spring break (and how to leave it there)

One of the things that happen when you get older is the number of occasions where you can just “let go” get fewer and fewer. I’m talking about going somewhere and letting go of all your cares and inhibitions and just being in the moment in a way you aren’t the rest of the year.  Not everybody needs to have those moments, but for those who do, they result in memories and stories you share with your friends forever.  As working adults we have vacations, but even then there aren’t really vacation spots where everyone is your age, has a similar job, and is there for the same reason.  Simply put, there is nothing like spring break as a college student.

Whether you’re going to Panama City, Ft. Lauderdale, Cancun, Jamaica or anywhere else where you can have a drink served in a hollowed out coconut, you are there to let go.  When you’re there you don’t have that class you hate, a project due soon, an RA who “is out to get you,” your ex living down the hall, or any other cares.  You just have the moment, and whether that moment is dancing, drinking, going to some lame MTV event where they tell you “everybody make some noooiiiiise!,” or just presenting yourself as the person you want to be as you try to “date,” you simply aren’t thinking of your obligations to your school.  That used to be fine, but it isn’t now.  There are simply too many ways that you can get in trouble, and word of that trouble will reach your campus.  I think alternative spring breaks are great, but let’s be realistic.  Most students will want to let off steam during this time. Whether you’re at Freaknik or doing body shots in West Palm, you probably don’t want to have to explain what you did to your parents or professors, and you definitely don’t want to explain it to your judicial board.  I have some suggestions to help keep you safe and trouble free.  Some of these will just be good ethical suggestions, but here are some ways to make sure you leave spring break at spring break and don’t get in trouble when you come back.

  1. Don’t get arrested.  This seems simple enough, but many spring break locations have been cracking down on underage drinking, public drunkenness, “disturbing the peace,” and other “crimes” that they used to ignore.  No matter where you’re going you should make sure you know the laws around whatever you and your friends plan on doing.  Some places will hold you accountable for whatever happens in areas within your control (e.g., if your friend has marijuana in your hotel room, you are considered in possession of that marijuana.) That fake ID?  The handle of Jim Beam you brought with you?  Jail.  Public urination?  That could be considered “exposing yourself” and be treated like a sex crime.  I’m not saying that any of these things will happen, but take 10 minutes to understand the “nono”s of where you’re going and make sure you don’t do any of them.  Oh, and ALWAYS be polite to the police, hotel employees, and bouncers.  A lot of them want nothing more than to teach some “smart ass” college kid a lesson.
  2. Do NOT post photos or allow yourself to be tagged in any posted photos.  Facebook has been around a long time, but you would be amazed at how many people still allow themselves to be photographed using a bong, passed out surrounded by beer bottles, with an ecstasy grin, an in other incriminating photos.  While I do not believe that you should be held accountable for those actions, many schools will treat those photos like evidence and bring you up on charges for the actions.  This is especially true at any school with an honor code, but most schools have some policy that allows them to address “off campus” behavior as if it took place on campus. So check Twitter, Tumblr, Facebook, and every other place you share your life to make sure you know what’s being shared.
  3. Remember that intoxication makes consent impossible in almost every jurisdiction, so make sure that what you think is “fun” is not actually “assault.”  While not everybody you have sex with when they are drunk will think of it as sexual assault, the risk that you will commit a crime and, more importantly, ruin someone’s life is always there.  When I used to do programming for men around sexual assault and the issue of consent I talked a lot about this issue. The push back would be that it wasn’t fair that they could be somewhere that people were to hook up and if they chose the wrong person she would then say she was sexually assaulted.  Forgetting for a second that the world doesn’t actually work that way and there are statistically fewer false reports of sexual assault than there are any other crimes, this is REALLY easy to avoid.  As a rule of thumb, if you are drunk or if you think the person with whom you’re making out with is drunk, stop.  Say to that person “look, I think we’re too drunk to go any further, but after we get some sleep…”  If that person is not willing to fool around the next day, there is a REALLY good chance that you were about to commit sexual assault.  If they are, you know you didn’t!  (Also, if they aren’t, being known as the person who wanted to hook up when you and/or she was not wasted is not going to hurt your reputation with other people.)

Spring break should be a blast, and I’m not saying that you have to be a saint.  What I am suggesting is that you minimize the risks when you’re there and make sure that there aren’t any when you return to campus.

But if you do get in trouble, get in touch.  We’ll help.

 

Preponderance of Evidence standard in sexual assault cases.

When I show former colleagues our site, if they respond negatively, they usually do so because they think our job is to get “guilty” people out of trouble.  I knew that was going to be a common reaction when I started College Judicial Consultants, but that’s really not what we do.  We try to make sure that people who are not responsible are found not responsible, and that those who are responsible receive the minimum sanction possible given all of the facts (i.e., the best result for that student).  One would then think that we would like a higher standard of proof than the common one used by judicial boards because it would make our job easier, but the opposite is actually the case.  The lower standards may result in more people being found responsible, but it allows boards to use discretion and the needs of the people involved to determine sanctions.

(Before I continue I want to define the terms I’m using so we’re on the same page.  The criminal standard is the one we all know from shows like Law and Order, and that’s “beyond a reasonable doubt.”  For all intents and purposes, think of it as a reasonable person’s 100%.  The lower standard used in civil cases and in some judicial cases is “clear and convincing,” (C&C) which, depending on who you ask, is about a 75-80% standard.  The most common one (and the one I believe in the most) is the preponderance of the evidence (POE) standard, which, when I was at MIT, I described to students as “50% + a butterfly’s wing.”)

I came across this article the other day on The College Fix  http://www.thecollegefix.com/post/9713 which describes how Patrick Leahy is dropping requirement that colleges use the standard of preponderance of evidence in sexual violence cases.  This is simply the wrong move, as it will actually wind up hurting accused students while further increasing the chilling affect of accountability systems on the survivors.

There are many reasons why not using the preponderance of evidence rule is harmful to all parties involved and the system itself:

  1. It furthers the adversarial nature of the hearings, revictimizes the survivor, and discourages the survivor from seeking accountability for the perpetrator.  Judicial hearings, in theory, are supposed to be non-adversarial and most schools work hard to get as close to this as possible.  When the standard is POE, it doesn’t make any sense to attack the accuser.  If an accused student’s defense is to attack the person accusing them and not tell the story from their perspective, the boards are left with the question “is this a good person” which is (or should be) totally irrelevant to the hearing.  Even if a survivor is a terrible person, he/she can still be a victim.  POE forces the parties to talk about what happened and keep discussions of the other person’s character to the facts relatable to the situation itself.  If, however, it’s the C&C standard, then why not spend all of your efforts attacking the character of the accuser?  There are no rape shield laws and there are no rules of evidence to follow, so why not bring up all those rumors you “heard?”  A survivor will have to spend time proving that he/she is not lying, not a whore, etc.  This will clearly revictimizes the person much more than the traditional system where they only have to deal with what happened.  Because of the increase in the revictimization (and what they will need to do to prepare for the hearing) this will have an even stronger chilling effect on survivors and even fewer cases will be heard.  If you believe the current literature about perpetrators, this means that more predators will escape accountability and will be much more likely to do it again.  (See Dr. David Lisak’s “The Undetected Rapist.)
  2. It decreases (or should decrease) the sanction range available to a hearing board. This is going to get a little convoluted so bear with me.  The logic with using the C&C standard is that there are a lot of students who, in the course of being a regular college student (i.e., drinking, using drugs, trying to get laid) students will find themselves in situations that may meet the “technical” definition of sexual assault or rape, but are not done with the intention behind those policies.  The image is of a young Dave Kennedy drinking his way through numerous beer pong games who meets a young lady and, eventually, hooks up.  If the woman is also intoxicated then poor Dave unknowingly committed sexual assault because she did not have the capacity to consent.  It’s a very sympathetic scenario because whether the board is faculty, staff, students, or a combination people have either been in that situation before or know someone who has.  The only real problem with that scenario is that it’s complete nonsense.Keep in mind, the question isn’t whether the act violated the policy, it’s whether the person in question brings a case forward.  In otherwords, there are no hook up police who assess each scenario and then accuse someone of sexual assault.  The party involved has to feel that they were violated without his/her consent.  There is a HUGE difference between feeling that way and “regretting” hooking up.  It is a rare case where someone goes forward and sees the case through without believing that he/she was assaulted.  While it’s true that C&C will have a chilling effect on those people and may indeed prevent those rare cases from moving forward, it will also stop people who do not think they can “prove” their case (i.e. meet the “beyond a reasonable doubt” standard.)Even assuming that there is not a chilling effect, most sexual assault on campus involves drinking or drug use by one or both parties so how “clear and convincing” can a person be?  The more drunk a victim is the more likely their memory will be shaky, and the less likely they will be able to prove their case.  On those rare times when a survivor does meet that standard, a board would  not be able to justify any sanction less than a lengthy suspension or expulsion.  If you find someone 75% a rapist, how do you justify keeping them on campus?  The lower standard allows a well-trained board to account for any actual ignorance on the accused’s part and temper the sanction accordingly.
  3. It perpetuates the notion that people raising these claims are “liars.” This one’s much less complicated.  Students understandably think of judicial hearings as determining “guilt” and “innocence.”  If you are accused of something and not found responsible, then you aren’t guilty, and therefore the person accusing you was lying.  We can know this isn’t true all we want, but students will still think this way.  A higher standard lowers the number of cases heard and lowers the percentage of findings of responsibility.  This will make it falsely seem like fewer sexual assaults are occurring and that “most” of those that do come forward are not true.  More chilling.
  4. Board members aren’t idiots.  There is a big difference between finding someone responsible for something and sanctioning them.  A student can be responsible for something in a “technical” or “negligent” sense and there should be a way to both find them responsible and not interrupt their studies while they are reformed.  A simple truth about these cases is that if a board is on that 50% line for responsibility they are not going to find someone responsible.  I have been at over 20 hearings on interpersonal violence and not once has someone been found responsible for a heinous offense because of a technicality.  Train your board correctly and include other violations at hearing so that your board can do the right thing all around.  For some reason colleges and universities build systems around an imaginary innocent person instead of around very real and identifiable predators.  No system that was equally concerned with both parties would ever use a standard other than POE.
  5. It puts the accused student at much greater risk for civil or criminal sanctions.    This is also easy.  One of the best things about a college disciplinary system is that it is separate from both the civil and criminal systems.  This means that a school can hold it’s citizens accountable without it meaning that they are “guilty” in some larger societal sense.  However, when a school uses a standard of proof the same as one of those parallel systems it puts the accused student at risk for additional penalties.  Afterall, if you can prove someone committed an act of sexual violence by the C&C standard, why not then sue them?  You’ve already proven the case.  An accused student would also not be able to move on because the victim would have some statutory period in which to bring these claims which would keep a gun at the student’s head well after the school is done with the matter.  I can hear all you advocates saying “good” out there, but it is easy to see how this specter of future legal consequences would encourage character assassination and lying to ensure that the case won’t be transferrable as easily.  In other words, if you make the experience as bad as you can for the victim, they are less likely to want to do it again.

I believe that we are thinking about these issues in the wrong way.  Our systems should be set up to encourage the discovery of the truth.  The lower standard minimizes someone’s ability to use cleverness to evade responsibility while allowing for a more appropriate sanctions when responsibility is found.  If a school has a trained and experienced board hearing these issues, then the standard will not matter.  Centering the argument around the standard implies strongly that a judicial board is nothing more than a machine which follows flow charts to determine how to handle situations and not capable of using higher thinking to come to a resolution that sanctions, educates and restores.  That’s not an implication I accept.

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