1 Feb 2005
Dear Dr.
Lampkin:
As you know,
several current and former University of Virginia students or their
parents have contacted Security On Campus, Inc. regarding their
serious concerns with your current sexual assault policies. We have
been closely following your work to revise them, and applaud this
effort. There are, however, several major issues with the draft
language including possible compliance problems with the federal
Jeanne Clery Act and Title IX.
In the interests
of assisting you and the entire University community with this work
we have prepared several comments about the changes based on our 18
years of experience working with campus sexual assault cases. For
clarity our comments are offered on the new policies in the order
that they are found in your draft.
SECTION I.B.-DEFINITIONS
Establishing the
lesser offense of "sexual misconduct" based solely on the
assailant's "mistaken" impression that they had consent improperly
obscures the real question-was there in fact consent or not. This
seriously minimizes the offense, and the impact it has on the victim
and the community.
Further, instead
of setting a clear obligation for students to establish consent it
serves to legitimize the widely held misconception that
"acquaintance rape" is merely a mistake rather than a serious crime.
If the University truly will not tolerate this type of misconduct,
as is stated in your policy's introduction, you need to establish an
unambiguous policy that sexual intercourse without consent is wrong
without any qualifiers.
SECTION
II.A.3.-CONFIDENTIALITY OF THE HEARINGS PROCESS
While the draft
no longer includes an express prohibition on either the complainant
or the accused redisclosing the outcome of the hearings process,
which would be prohibited by the Clery Act, it does not clearly
state that they can. In the interests of eliminating the culture of
silence that continues to surround sexual assault, the victims of
this crime should be empowered to speak out if they wish, and your
policy should clearly permit this.
Failing to
clearly articulate this policy risks falling back on existing
practices and institutional culture which have required victims to
remain silent. Additionally, a written policy on this point will
help ensure that the University is in full compliance with the Clery
Act's requirements.
Also, the list
of individuals which a student may privately contact during the
hearings process seems to have two major omissions, a non-medical
rape crisis counselor and a victim advocate either within or outside
the University. They can provide critical assistance, and victims
should not be precluded from privately discussing the ongoing status
of their case with them. Please note that a student's own first hand
experiences are not limited in any way by FERPA.
SECTION II.A.4.K.-CLEAR AND CONVINCING EVIDENCE STANDARD
The draft
policy, and the current policy, require the use of the "clear and
convincing" standard of proof in sexual assault cases. It is our
understanding, however, based on a Title IX case involving
Georgetown University that the U.S. Department of Education's Office
for Civil Rights
has determined
that the lesser "preponderance of the evidence" standard is the
appropriate standard for "sex discrimination complaints, including
those alleging sexual harassment" of which sexual assault is
considered an extreme form of hostile environment harassment.
Failure to use
the proper standard may make it "more difficult than it should be
for the University to hold students... responsible for acts of
sexual harassment" as OCR stated in the Georgetown case.
Accordingly, we would strongly recommend that you review this case,
OCR Complaint #11-03-2017, and consult with the Office for Civil
Rights regarding the proper standard of proof to use in all sexual
assault and harassment cases.
SECTION II.A.4.M.-SANCTION
It is upsetting
to see that a finding of guilt in a sexual assault case does not
automatically result in an expulsion, or even a suspension under
this draft policy while under the Honor Code academic cheating
automatically results in "permanent dismissal" from the University.
Any sexual intercourse without consent is a far more serious
violation of trust than academic cheating, and treating it as a
lesser one, as your draft policy would, minimizes it and sends the
wrong message to students.
We do recognize
that under the draft policy the University "expects all cases
involving a conviction of Sexual Assault to involve consideration of
the sanctions of suspension or expulsion." The Sexual Assault Board,
however, should already be considering these as part of the entire
range of available sanctions. If at a minimum the University wants
expulsion, or at least suspension, to be the default sanction the
policy should reflect this unambiguously.
SECTION
II.A.4.P.-APPEALS
Your revised
appeals policy represents a significant step backwards in victims'
rights as it would limit appeals only to "those students found
guilty" instead of the current policy which states that "either
party may appeal the panel's decision." It is especially egregious
that this policy change was included in a package of changes
ostensibly intended to make the process fairer, and more victim
friendly.
If you truly
want the process to be fair, and equitable as required by Title IX
reconsider this incomprehensible decision.
SECTION II.C.-MEDIATION
Both your
current, and proposed rules permit mediation in sexual assault cases
despite clear guidance from the Office for Civil Rights that this is
inappropriate. The Title IX guidance states that in "some cases,
such as alleged sexual assaults, mediation will not be appropriate
even on a voluntary basis." See page 21 of the document "Revised
Sexual Harassment Guidance" (U.S. Department of Education; January
2001) available on the ED web site at http://www.ed.gov/offices/OCR/archives/pdf/shguide.pdf
for confirmation.
SECTION III.-ADDITIONAL TERMS
The draft policy
states that the University may "suspend implementation of these
procedures in the event of pending or likely criminal charges."
However, because criminal proceedings use different standards and
may take a protracted period of time to resolve suspending campus
procedures may actually violate a victim's Title IX right to a
prompt and equitable resolution of their complaint.
The January 2001
guidance, referenced above, clearly states that "because legal
standards for criminal investigations are different, police
investigations or reports may not be determinative of whether
harassment occurred under Title IX and do not relieve the school of
its duty to respond promptly and effectively." The guidance cites
two specific rulings as follows "Academy School Dist. No 20, OCR
Case No. 08-93-1023 (schoolıs response determined to be insufficient
in a case in which it stopped its investigation after complaint
filed with police); Mills Public School Dist., OCR Case No.
01-93-1123, (not sufficient for school to wait until end of police
investigation)."
CONCLUSION
We hope that you
will find these comments helpful as you further review your sexual
assault policies, and that you will give them serious consideration.
We also thank you for undertaking this important process. Should you
have any questions or we can ever be of any further assistance
please don't hesitate to contact either myself at my Tennessee
office, or my colleague, Catherine Bath in our main office at (610)
768-9330.
S. Daniel Carter
Senior Vice President
Security On Campus, Inc.
********************************
7505 Granda
Drive
Knoxville, TN 37909-1730
phone: (865) 691-6468
fax: (865) 691-6979
http://www.securityoncampus.org/
