College Judicial Consultants

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Archive for the tag “Victim”

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

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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 (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.

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