College Judicial Consultants

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Archive for the tag “university”

An Easy Solution to the Innocence Problem

quote-it-is-better-that-ten-guilty-persons-escape-than-that-one-innocent-suffer-william-blackstone-211382College Judicial Consultants I wrote a piece about the problem with proving your innocence in college judicial hearings—quite simply, if you’re innocent it is very hard to be found not responsible with the preponderance of evidence standard.

I’ve recently worked with another completely innocent client, and the same problems are there. She was accused of doing something that she not only had no idea how it happened, but for which she also had evidence-supported reasons for believing didn’t happen. I won’t talk about the details, but an analogous case would be if she were accused of arson.  A house burned down because the stove was left on, and she lives alone and had nobody over. When she left the house, she turned off the stove, took a picture of it being off with a time and date stamp, and then checked it one more time before leaving. While it’s true that the house burned down and the stove being on was the reason, she had no way of knowing that it was on prior to the blaze or how it was on considering what she did.

Disciplinary boards usually use a burden-shifting approach in determining responsibility. The respondent is innocent before the hearing, but once the complainant shows that something happened and that the respondent did it, it is now up to the respondent to prove it didn’t happen or she didn’t do it. This is how it works in court (again with apologies to my law professors,) but in judicial cases it is a much heavier burden than it is in court, and almost impossible for innocent respondents to meet in most circumstances. In criminal court, all the defense has to do is show that there is a “reasonable doubt” that the defendant didn’t do something. That’s a 5-10% chance. In civil court they have to show that it is 20-30% likely that they didn’t do something. However, in judicial cases the respondent needs to show that they did not do something that happened with more than 50% certainty. Once you show that something happened and that the respondent had either control over that thing or should have had control, the noose is essentially tightened.

the-shawshank-redemption-32I know that’s confusing, but think of it this way: I show you that a house burned down, that the stove being on was the reason, and that the respondent lives alone. How can she possibly show that she didn’t do it with more than a 50% certainty? She would have to know how it actually did happen and then prove it. What this means is that if the “most likely” explanation for a violation of the conduct code on campus is that the accused person did it, there is essentially no way to prove she didn’t.

It gets worse for the innocent student during a judicial hearing.

If you actually didn’t do something and you try to show the disciplinary board that you didn’t do it, that defense can hurt you. If the board thinks that you did it and finds you responsible, it means that they do not accept your version of what happened. Since they don’t accept your version there is a good chance that they think you’re lying, or at least trying to avoid responsibility. Since the disciplinary process is supposed to be “educational,” boards are likely to sanction someone they think responsible and avoiding responsibility harsher than someone who “comes clean” and accepts responsibility. This means that if an innocent student cannot prove that she did not do something, trying to prove it can hurt her more than simply pretending she did it and accepting responsibility even though she is innocent.

The solution to this is simple-retrain the boards. Most respondents are not “innocent” or at least not completely innocent. Some may have mistakenly broken a rule and are being accused of doing it intentionally, but most actually did something wrong that brought them in front of the board. This means that the current way of doing things “works” most of the time. However, if boards are trained to analyze information from the perspective of the accused student many of these false findings of responsibility can be avoided without any impact on the current success of the boards. So if a student can come forward and show that she took reasonable steps to avoid something, that she was unaware of something, or that she actively believed something that would have prevented the violation happened it would no longer be necessary to show what “might” have happened. It is much easier to “prove” what you know to have happened or what you did, than to prove what you had no way of knowing.

Sure there may be some students who escape findings of responsibility, but as the saying goes “It is better that ten guilty persons escape than that one innocent suffer.”

What do you think? How do you weed out “innocent” students or ensure that they don’t face an insurmountable burden? Write a comment or email me at DaveK (at) Collegejudicialconsultants (dot) com.

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.

 ______________________________________________________________________________________________

 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.

The Disappointing Appeal Process (pt.3)-Fixing the System

The campus judicial system is, as a whole, outstanding. If you consider the tens of thousands of serious cases heard each year, and how few true mistakes are made by a board, there is an effectiveness not seen in most systems. However the systems in place must be transparent and allow all parties to be heard fully heard in every step is inherently unfair regardless of outcome. In order to have a fair appeals process that serves and protects the students, some of all of these changes should be adopted.

  1. Completely separate the professional connection between the appeals officer/board and the judicial officer/board. The person orProduce - apples and oranges woman board considering the appeal should have no knowledge of the case prior to reviewing the records and materials for the appeal. If there is a relationship, especially a direct reporting relationship, between the two it is impossible to prevent a respondent from thinking that relationship played a part. It is almost as important that a system seem fair as it is that it be fair.
  2. Allow a ground for an inability to prepare an adequate defense for reasons outside of the respondent’s control.  Most students subject to the judicial process are not developmentally or intellectually able to be effective advocates for themselves, and even if they are this is likely their first time having to do this sort of thing. A student should be able to make a case that he or she did not prepare as he or she should have due to a misunderstanding of the complaint, issues raised at the hearing not provided prior to the hearing, etc. A school concerned with reconsidering every board decision could make the remedy for this ground a new hearing rather than a reassessment of responsibility or the sanction.
  3. Allow an appeal for all sanctions, and not just the most serious. Most schools maintain records of disciplinary violations for well after a student graduates. If a student feels cheated by the system or if there were gross procedural or other errors, he or she should have the ability to challenge the outcome. In order to limit the appeals to those cases where actual errors or injustice exists, make certain the appeals officer/board can increase the sanction as well to prevent this from being a risk-free way for students to appeal everything.
  4. Provide detailed explanations for the finding of responsibility and the sanction in every decision letter. Not only will this allow a student to understand the basis for the decision against him or her, but it will also ensure a more educational process since the board will have to be able to articulate its reasoning vis a vis the violation and the student involved. It will also make it easier to modify a sanction while still maintaining the educational intention if an appeals officer knows the rationale behind  a sanction.explanation-i-demand-one
  5. Loosen the “new evidence” rule.  Currently most systems limit new evidence to that evidence that was unavailable at the time of the hearing, but to a student going through the judicial process relevant evidence may not be clear until the actual hearing. An easy way to adjust this policy would be defining “new” evidence as it currently is defined, but also allowing evidence not predictably necessary based on the response but that can be shown to have been raised and/or considered at hearing.
  6. Make the standard of review the same on appeal as the standard of proof is at hearing. If a respondent can show on appeal that a mistake was made, the review standard should also be preponderance of evidence. If the mistake or error had not been made the respondent would not have had to prove clear and convincingly that they were not responsible so why make them do so now?
  7. Remember that ties go to the student. When a finding of responsibility was made because a student just barely crossed the threshold of more likely than not, the sanction should reflect that level of responsibility. In other words, someone 100% responsible should not ever have the same sanction as someone 51% responsible. If on appeal the decision is too close to call, you should find in favor of the respondent.
  8. Allow students to appeal sanctions no matter what system was used to give that sanction. Many schools have administrative hearings/meetings where students are given the option of accepting responsibility and getting a sanction, but the student almost always must waive his or her right to appeal. This is patently unfair since the student does not have the experience or understanding to grasp the impact of a particular sanction. I have had many clients who accepted a “plea” because they were told that they would get worse at a hearing. If you tell an 18 year old that he could get suspended if he doesn’t accept probation, it would take a highly developed 18 year old to risk a hearing, no matter his responsibility.
  9. Any questions asked of one party or the judicial officer while considering an appeal should be shared with the other party. It is simply unfair to have someone be able to respond to a claim without allowing the other party to hear that response.
  10. Allow suspended students and groups to petition for earlier readmission. For some students and especially some student organizations, the growth and development a board wanted may be accomplished in less time than initially thought. There should be a way for a student to petition for reconsideration during a suspension. I imagine this will be a hard case to make for the suspended student, but it should be possible.

What do you think? Are there other things that could make the process more transparent and ensure that students are given every chance to defend themselves?

Year in Review: The Disappointing Appeal Process (pt.1)–Background

[As this year wraps up, I thought it would be worth talking about some of the good things and bad things I’ve noticed that cut across all systems.]

All college discipline systems have an appeals process that is meant to protect the rights of the respondents. In theory, these are the checks on the authority of the judicial boards that can suspend or expel a student. Since the judicial boards have so much power, the appeals process is meant to ensure that a student was not sanctioned unfairly or against policy. If you’re a student or a Greek organization and you go through the judicial process (“respondent”) and get a sanction you think is unfair or you feel you were denied a fair hearing, you can appeal that decision to a “higher” administrator authority. The idea behind this is a good one—while the boards are very well trained and successfully make dozens of hard decision each year, occasionally there might be a mistake that unjustly impacts a respondent. The appeals process makes sure that these mistakes are corrected and that the “right” result is ensured.

Unfortunately, in most systems the appeals process is merely a false hope offered to respondents, and their actual chance of changing a board’s decision is nil.

Sisyphus

Almost without exception, the appeal is not a rehearing of the case. Since the board heard the case and was in the best position to make decisions of fact, the de facto position is that their conclusions are “true” unless some “mistake”  happened to make their conclusions incorrect. As a rule of thumb, even though a judicial board uses the “preponderance of evidence” standard when deciding facts, a higher standard is used when deciding if those facts are reasonable. (More on that later.) Even more importantly, almost no system allows you to directly attack the board’s findings so you must use a different ground to get to a place where your dispute will be considered-something beyond the ability of almost all students. There are only a few grounds a respondent can use in an appeal (and most schools have some combination of these, although they may be worded differently):

  1. New evidence that was not available during the hearing, but which could/would have changed the outcome—This is an almost impossible standard. It does not mean that there was something a respondent could have presented but chose not to and it does not mean that there was something that they could have found but didn’t. It means literally that something came to light after the hearing that would have been used if it was found before the hearing, and that it was not discoverable prior. (Some systems have a looser interpretation, but this is the common one.) Not only that, but it needs to be different from the other evidence that was presented in order to potentially have changed the outcome.
  2. A procedural error which affected the outcome—This is a two part check. It is not enough that a procedural mistake was made, but that mistake needs to be serious enough that it resulted in a decision that would have been different if it was not made. Since a judicial administrator’s job is to make certain that these types of errors do not occur, these are rarely winners. (This ground is usually a way to argue the facts, but the appeals officer has to agree that there was a violation or she will just dismiss the argument without consideration.)
  3. A misinterpretation or incorrect use of policy—This is less commonly used, but it essentially means that there was a charge that, when applying the facts as the board found them, should not have resulted in responsibility.
  4. The sanction is too severe for the violations—This is where most students couch their appeal because to them this one is both true and understandable. A respondent may not understand what the policy for disdog-chasing-its-tail11puting the impartiality of a board member is and whether or not there was a mistake, but she knows that being suspended for a year is severe. The mistake they make is that in order to win on this ground, the sanction given has to be more severe than the acceptable range for these violations. This does not mean that the appeals officer thinks that the sanction should havebeen lighter, but that the sanction given was not within an acceptable range of potential sanctions. Since most violations that could result in a suspension for a semester could, in theory, result in expulsion this is deceptively difficult.

The problem is not the difficulty of an appeal, but that the system is set up to make it virtually impossible to make a successful argument. On Friday I will discuss why the appeals process is essentially “fixed” to work against the respondent, and next week I will offer some suggestions on how to make it fairer.

Am I missing something significant? Please feel free to comment and correct me, but if you are a judicial officer I ask that you include your appeals statistics for cases that resulted in suspension or expulsion.

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.

Case Study: The Underage Party–Hidden Considerations in the Judicial Process

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[NOTE: All names and identifying information has been changed to protect the privacy of the students involved. Any relation to a case you may know is purely coincidental.]

Steve was a senior at a competitive school living in a residence hall on campus. On Wednesday some underclassmen asked Steve if he would buy alcohol for a “suite” party they are having that weekend that would mostly be attended by other residents. Steve knew these students and has purchased alcohol for some of them before, so this request was not a big deal. Steve bought handles of different hard alcohols and a couple of cases of beer for them, but did not attend the party.

At 2:30AM one of the a freshman guests heading back to his dorm with a BAC more than three times the legal limit, was hit by a car, and was seriously injured. The situation made it to the campus newspaper, and there was a lot of upper-level administrative attention on that case—including the campus attorneys. Steve and the party hosts were eventually informed that there would be a judicial hearing for their actions with the charges being underage drinking, providing alcohol to minors, and reckless endangerment based on the party and the student’s injuries. At the hearing all the respondents argued that since Steve was not at the event he should not be responsible for how much the injured student drank, and that none of them should be responsible for the fact that the freshman was hurt on the way back to his residence since his being hit by a car was a fluke.

What Steve and the other students did not realize was that there were two simultaneous forces affecting their case. They knew about the one clearly written in the charge letter and presented in the evidence against them. They presented a decent (although not great) defense against that one, but they did not see or consider the political impact of the student’s injuries and how their case fit into the big picture. When it came to the case, the judicial board chair was aware that there were a lot of eyes on the outcome and that awareness was shared with the board prior to the hearing.

As the students presented their defenses, the board was listening for information to help address both the case itself and also the various implications of the student’s injuries. Since Steve and the other respondents did not consider that aspect they did not address it and the board was left with only their pre-case impressions and a belief that the respondents did not “get the seriousness” of what happened. Steve was found responsible for providing alcohol and reckless endangerment, and was suspended for the last semester of his college career and had to come back the following year in order to take the mandatory class he needed for his major.

It is important to realize that the board did NOT intentionally punish Steve more severely because of the political undercurrents. By the time the case got to the board, the impact of the politics and attention were already in place, and those factors directly affected the outcome:

  1. While this board almost never heard alcohol cases the fact that they were implied a seriousness they could not ignore.
  2. While the student injury was clearly why the case was treated so seriously, the board and the respondents were not looking at the same issue. The respondents focused on the “fluke” nature of that injury, but the board believed the idea that an extremely drunk freshman getting hurt was actually very foreseeable. All the respondents seemed to be doing was missing the point and not taking responsibility.
  3. The decision to hold Steve accountable even though he was not there was not what was normally done, but the decision to do so in this case was made prior to the hearing. When the board got the case the students assumed that Steve would be fine based on their experience, but the board decided the person most responsible was the older student that supplied the alcohol because he had the ultimate responsibility for how that alcohol was used.

Cases do not happen in a vacuum, and the political climate at the school, the “headline” news, previous cases, and recent history can all play a factor. The good news is that these are not factors in 95% of cases. The bad news is that when those external considerations are factors, it is highly unlikely that a student, fraternity, or sorority will be able to identify and address them properly. If you are in trouble, and you think the people working with your case are treating it like a bigger deal than you think it should be, there are probably more things going on that you know. Contact us for a free consultation to see what you may be missing and how we can help.

Have you had a disciplinary case against you, your fraternity, or your sorority go worse than you expected? Contact me at DaveK@Collegejudicialconsultants.com and share your story for a future piece or share your story in the comments.  Be safe, be good, and be ready.

Getting Better Advisors–Why Administrators Are Wrong About Us, And Why That Mistake May Hurt You

At College Judicial Consultants we have tremendous respect for judicial officers, Greek advisors, and other administrators, but believe they should be less mistrustful of outside help during the campus judicial process. When that help is an attorney for the non-legal judicial process, that help can indeed hurt a student and cost the student thousands of dollars. While we understand that mistrust, we believe that when you look at the support offered on campus, we are not truly outside.

Fact 1: Every student discipline system allows a student or organization (“respondent”) to have an advisor, with most limiting that advisor to a non-attorney from the campus community.

Fact 2: Only a handful of schools have an organized advisor program where they train a few faculty and staff in how the system works and make those people available for students going through the process. These advisors are well intended and may help a few students each year. However, their job is to make sure the student understands the process and is connected to campus resources; not to “help” the student minimize the consequence or negate false accusations. In other words, they are there for emotional and psychological support only. That support is REALLY important (in fact we encourage every client to take advantage of it) but that type of advising is less than a respondent needs when they are innocent or the stakes are high.

When a respondent goes through the disciplinary process there are two essential parts of that process the respondent needs to understand—the procedure and the content. Judicial officers often say that their system is “different” and thus requires someone with specific training to understand it. While this is technically correct, ask your judicial officer if he or she can understand other systems and I’ll bet you $5 they won’t have a problem doing so. Judicial systems have slight differences, but they are similar enough that there are best practices, model codes, community assessment models, and uniform standards. More importantly, any system they have must be explainable AND in writing in a way to make it understandable. When you meet with the judicial officer he or she will explain it to you and that explanation is essentially the same “training” the advisors from the school receive.

The much more important part is developing the content where the respondent gets the chance to tell their side of the story and present evidence to show how their version is correct and the accusations are inaccurate. It is during this part of the process where respondents make mistakes that can get them found responsible when they are not, and make their sanction worse than it needed to be. It is in this arena that our consultants are miles ahead of any other “advisor” you will get from the school for two very important reasons:

  1. The least experienced of our consultants has seen at least 10 times the number of cases as the most experienced advisor from your school (with that number closer to 50 times more.) This means that your consultant has seen literally hundreds more responses than anyone you will find on campus, and are much more likely to have seen a case with similar facts to yours.
  2. Our consultants’ only goal is to make sure you are not found responsible for something you did not do and have the smallest consequence possible for what you did. We are not faculty who have opinions about plagiarism at your school. We are not administrators who have had to deal with “problem” students. In other words, we do not have any reason to protect the school, the community, or the system.

In other words, we are like the best advisor you might find on campus but with vastly more experience, and without any agenda other than giving a respondent the best chance for the best result. Why would anyone on your campus not want you to take advantage of that?

 Contact us for a free and completely confidential consultation to go over your case and see what we can do for you.

Don’t Believe the Hype: Positive Implications of Greek Membership

The AFA (Association of Fraternity/Sorority Advisors) conference is happening right now (11/28/12) in Indianapolis.  There are great programs on expansion, creating change, advising local organizations, restorative justice, masculinity and feminism, social justice and other great topics.  What there aren’t are any programs like the one I’m going to propose for next year.  “Apologize for nothing: addressing the negative impressions of Greek life without accepting them.”

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An article in the Michigan Review details the results of the research done by James Turner at UVA who, after examining the mortality rates of 1150 schools found that for every 100,000 students there were just over 6 suicides and just under 5 alcohol deaths. (Note:  They say “alcohol-related traffic deaths” in the article so my rephrasing may be misleading.  If, as is likely, they specifically mean these types of deaths then when you add alcohol poisoning and the other alcohol deaths then I would imagine they eclipse the suicide rate.  Since the gist of the article is that suicide is the #1 cause of death for college students, that wouldn’t make sense. I’ve therefore made the assumption that they mean “alcohol” deaths.) This got me to thinking about the things I used to discuss with my colleagues on the student crisis teams, and the impact being Greek has on the at-risk students.  Since I’m not in grad school, I’m not going to do actual research studies (although if you do want a great thesis topic, feel free) but I thought I would post my thoughts and invite anyone who knows more to comment.

  1. Alcohol/dependency issues. I think there’s no doubt that Greeks have more students that are assessed in the “dependent” range for alcohol than their non-Greek counterparts.  I do not know if the same is true for drugs, but I assume that it would actually be drug dependent.  For example, I would not be surprised to hear that Greeks smoke more weed, but I would be surprised if they did more psychedelics or abused more pain medication. That being said, they drugs they do use may make them higher users of “drugs” in general. WINNER: Non-Greeks. That being said, I would be REALLY interested in comparing the alcohol consumption and drug use on campuses without Greek life (e.g. Bowdoin, Brandeis, Middlebury) with schools that have Greek life.  I suspect that the actual consumption rates would be similar and in which case I’d have to say “Tie,” but I can’t prove that.
  2. Depression/Suicide.  I think that Greeks are clearly the winners here. No matter how you feel about the types of connections people make in their fraternity/sorority, the fact remains that once you join these organizations you are rarely alone.  You are usually sharing meals and running in the same social circles as a large group of people you like, so I would expect that there is a lot more “dude, what the f*#k is wrong with you” type of intervention than there would be in traditional male relationships. I can actually think of dozens of examples of fraternity men and sorority women supporting their brothers and sisters through disease, parental death, and other situations, and have heard from students directly that they wouldn’t have “made it through” without their brothers or sisters. WINNER: Greeks!
  3. Violence (non-dating):  When you hear of a student writing manifestos, buying guns, or doing other crazy stuff that necessitates a threat assessment, it is almost never a member of a fraternity or sorority.  In fact, find me one example without the word “loner” attached to the description of the student and I’ll be stunned.  WINNER: Greeks!
  4. Inter-Personal Violence (e.g. sexual assault, dating violence, stalking.)  I think the literature makes it pretty clear that Greeks have a higher incident rate for sexual assault (both as perpetrator and victim) but I would bet that stalking is lower mostly because of the ease of intervention both for the perpetrator (“dude!  Let it go.”) and the victim (“That guy’s a freak.  I’m taking you to the police.”) (That bet is based in nothing, so please feel free to correct me with actual data.)  At schools with Greek life I’d have to probably say WINNER: Non-Greeks, but again the difference is narrow (and when you compare numbers of actual students I’ll bet there are more INCIDENTS among non-Greeks) and where there is no Greek life I would be interested to know once again about the actual incident rates to see if there are fewer per capita.
  5. Missing Students. Students occasionally get fed up and “disappear” for a while, usually by staying with a friend or taking a small road trip of some kind. Usually a parent will then call campus police after not hearing from their kid and file a campus missing persons report which triggers a pretty specific (and potentially lengthy) administrative process.  As with the depression/suicide category I would bet that there are many more of these among non-Greeks for the same reasons.  WINNER: Greeks!
  6. Campus Retention and Graduation. This isn’t a crisis matter, but another big issue on campuses is retention.  One of the biggest selling points I see on Greek Life websites is that membership in Greek organizations make a student more likely to complete their college degree. (see, for example http://arizonagreek.orgsync.com/benefits) WINNER: Greek life!

So what’s the point?  College administrators are quick to point out the areas of Greek life where the members are higher risk than non-Greeks, but I can’t think of a single upper administrator who has stood up and said “While drinking may be a bigger problem in the Greek community, membership in a fraternity or sorority decreases the likelihood that a student will drop out, be overwhelmed with depression, or commit suicide.” I’m not saying that you have to be Greek to have a happy and healthy college experience, but I encourage all or you to challenge your administrators, newspaper editorials, or anywhere else that tries to polarize people into “Pro” or “Anti” Greek camps.  Constantly remind everyone that the things that people use to vilify Greeks are also true for non-Greeks while the positive aspects of being Greek are not easily replicated in traditional residential situations.  Schools push co-curricular involvement to get a student vested in the college and the college experience, but completely disregard these benefits so they can talk about “hazing” and “binge drinking”–like that occasional aspect of Greek life is the ONLY purpose of Greek life. It isn’t, and I encourage you to refuse to accept that it is.

NB: A few housekeeping notes:

1.  Go to our website to know more about what we do and what we can offer.  We are working on a separate site/section for student organizations, but the services are similar.

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5.  I think the photo is Kent State Greeks.  Completely snagged off the internet without permission. 🙂

We Are the 5% Solution

We recently were featured in an article in The Dartmouth. The journalist, Ms. Amanda Young, discussed what we do and then spoke with their Director of Undergraduate Affairs, Mr. Nathan Miller, and Ms. Jessica Womack, a junior on Dartmouth’s “Committee on Standards (COS),” to get a sense of whether or not we are a resource that Dartmouth students should use.  It was a fair article with both Mr. Miller and Ms. Womack saying what you would expect from people in their positions.  Neither of them thinks that a student needs to use our services to get through the process; although they both seem to acknowledge that a student should use anything he or she can to maximize their readiness for the process.  While that position is inherently contradictory, since we essentially agree with them I thought I’d explain it.

To make the math easy, let’s say that, on average, 5% of college students get into some kind of trouble each year.  This trouble can be anything from the silly (violating copyright through “illegal” downloads) to the horrible (sexual assault.)  To make it even simpler, let’s pretend that Dartmouth has 2000 students so each year 100 of them get in some sort of trouble.  Ms. Womack and Mr. Miller both think that the process works well and that the support offered is sufficient for the students involved.  Let’s say they’re right, and give them an A on their process and the support offered.  That means that there is a 95% rate of what I call “sufficient fairness” where the resources and the process are enough to ensure that a student is prepared to obtain the best result possible. That would be an amazing system, and something that the people on the COS (like Ms. Womack) and the person responsible for the process (Mr. Miller) should be understandably proud.  In fact, at College Judicial Consultants we assume that every system is at or near 95% with the people involved in the process acting beyond reproach and really doing the best they can for students.

That still leaves 5% of the time where some additional help is needed or would help a student be more prepared.  Using the numbers above that means that at Dartmouth every year, 5 students could benefit from competent outside help.  In other words, it is completely consistent for the world to have judicial systems with an efficiency and customer satisfaction rate higher than almost anything offered anywhere by anyone, and also that the students subjected to that system could on occasion, use help and support beyond that system. We are here for that 1%, 3%, 5% or higher percent of the cases where the resources either are not sufficient or the student/student organization cannot use them fully so they are, in practice, not sufficient.  We are not trying to suggest that systems are out to get students or are happy when a student organization gets screwed over. We believe that systems of accountability are good things, managed by good people who work hard, and adjudicated by good people with the best intentions.  The problem is that sometimes that isn’t enough.

I can hear the defensiveness of some of our critics now “you’re just making up numbers!” Correct. I did. I have no way of knowing how many students that have gone through a process believe that they understood it all, did everything they should have, and would change nothing about how it went.   I do know, however, that if systems were perfect there would be no need for an appeal process.  If everything worked out as it should AND the students subjected to it were always satisfied with the result, they wouldn’t want to appeal because there would be no need. However, the appeals process is there for when a student believes that something very wrong has happened, and that the result is unfair. (I talk about appeals in an earlier blog so I won’t go into it more, but if you don’t see this point let me know and I’ll explain more.)

We love to assign blame in this country. If something isn’t working, or if there is a breakdown in something that does work, we love to point to someone and say “this is why it doesn’t work.”  If a student thinks the system is unfair, then it is that student or that fraternity that is “broken,” not the system. ($5 to the first person who can send me an article where the upper administration of a school, before any legal action began, said When we say that systems with underprepared participants are inherently unfair, we are not criticizing the people involved in that system (usually.)  We believe that most systems are inherently fair and that almost administrators and board members are trying to get the right result.  In fact, we count on it.  Our fundamental belief is that no matter how fair a system is the outcome will not be fair if the person subjected to it is not able to use it fully.  We are not challenging the fairness of a system when we say that.

Schools do have varying levels of support–some have advisors they train on the process, student advocates who help they prepare their responses, and other resources to help a student be prepared.  As I’ve said, in most cases they are probably fine and will be enough help.  However, when something is really serious, when a student or student group feels that they want someone who’s goal is to help them minimize the sanction against them or make sure they are not held accountable for something they didn’t do, when they want judgment free help, or when they just don’t trust the resources, we are here.  We have seen thousands of cases in different kinds of systems.  We have seen administrative hearings (run them in some cases,) all student boards (advised/created them in some cases,) boards made up of faculty, staff and students (trained them in some cases,) and “special” boards made up of more highly trained people to hear more serious cases (and served on them in some cases.)  We study the judicial system of every client’s school, and by the time the hearing happens understand it better than almost anyone. More than that, when we help a student or student group, our only obligation is to them.  We have no obligation to disclose and will never tell anyone what our client tells us, a promise that administrators simply cannot make. We also do not care about any political pressure on an office to deal with hazing, the anger of a faculty member about allegations of academic misconduct, the ego of a dean who believes that he should be able to control student behavior, or any of the other things that consciously or subconsciously shape a system. It is also worth noting that we encourage our clients to ALSO take advantage of the resources on campus.  Go to the counseling center, the academic resource center, your RA, and get yourself a hearing advisor so you don’t have to sit there alone!  Just don’t think that any of them have the combine expertise, experience, and knowledge that we do about Greek life, judicial systems, and case preparation.

If you have any questions about what we do and why we do it, email me.  We try to be as transparent as possible, so if we are doing something and you want to understand why, just ask. You can email me at DaveK@collegejudicialconsultants.com, or the office in general at Info@collegejudicialconsultants.com, or you can call us at (617) 287-8782.

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.

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