Think About It Wins Gold NASPA Excellence Award

Think About It, CampusClarity's online substance abuse and sexual violence training program for colleges and universities, has won the 2014 Gold NASPA Excellence Award for Violence Education and Prevention.

NASPA, Student Affairs Administrators in Higher Education, is the leading association of student affairs professionals in the United States. The NASPA Excellence Awards are presented annually in recognition of NASPA members who are "transforming higher education through outstanding programs, innovative services, and effective administration."

The awards, which are presented in Gold, Silver, and Bronze categories, recognize excellence in a variety of fields related to student affairs and higher education. Winners are determined by a panel of veteran student affairs professionals, who judge each entry by criteria that include:

• Impact on student learning
• Success in addressing student needs
• Use of innovative and creative methods, practices, or activities
• Application of available or emerging theoretical models and practical research

Think About It is a collaboration between CampusClarity and the University of San Francisco's Division of Student Life. In addition to training students to confront and prevent serious campus problems such as sexual violence and substance abuse, the program helps schools comply with the training requirements of the Campus SaVE Act and Title IX, while also providing administrators important insights into the culture of their campus and student body.

More than thirty-five colleges and universities use Think About It to train their students.

Confidentiality vs. Student Safety

A victim's request for confidentiality is a problem that schools often grapple with under the difficult circumstances of a sexual assault case. In a previous post we discussed how FERPA allows public disclosure of the outcome of student conduct hearings when accused students are found responsible for sexual assault. But what about a victim's request for confidentiality when the report is made? Does the school have an obligation to respect the victim's wishes? The following case provides one example of how following a school's reporting policies can have unintended results.

Seventeen-year-old Anna Livia Chen told her residential assistant she would not participate in Swarthmore College's Acquaintance Sexual Assault Prevention workshop for incoming freshmen. As a childhood sexual abuse survivor, Anna said it would be too emotionally difficult for her to listen to other survivor's stories, which is a standard part of the program.

Anna was abused when she was a junior high school student in California. Given that the incident occurred years before and thousands of miles away, Anna and her RA didn't think this needed to be reported to the Title IX coordinator. Swarthmore's sexual assault policy "applies to off-campus conduct that is likely to have a substantial adverse effect on any member of the Swarthmore College community or Swarthmore College … ."

However, a facilitator who contacted Anna to arrange a private session told the RA that Swarthmore's new interim policy requiring all college employees to report information about sexual assault to Public Safety applied to Anna's case. The RA complied by reporting the incident to Swarthmore's Title IX coordinator, but stressed that Anna "was no longer in any danger whatsoever" and had "all the support" she needed from her family, friends, and therapist back home.

The Title IX coordinator, in turn, was required by the school's policy to report the information to the school's general counsel who advised that under Swarthmore's policy the abuse must be reported to the Pennsylvania child abuse hotline. It should be noted that pending Senate Bill 31 would add postsecondary school employees to the list of mandatory child abuse reporters in Pennsylvania.

When she was contacted by child protective services, Anna told CPS that she did not want them to investigate her case. Later, on Anna's 18th birthday, CPS informed her that it was legally required to notify local police about her case.

Swarthmore's Policy Goal

According to Swarthmore's secretary of college, the reporting policy that set this chain of events into motion was meant "to not only meet the letter and spirit of the law, but to ensure that our policies assure the safety of our students, provide meaningful support to victim/survivors, and enable us to respond with the highest levels of fairness, compassion, and respect for privacy."

But this is how Anna described her experience: "So much of my time was being drained by having meetings with various administrators and resources, not to mention the emotional energy it took. I had no time for self-care, which is something that I desperately needed with everything that was going on. I am still frustrated that this process got to a point where it overtook my life in the way that it did."

Now Anna is working on changing Swarthmore's policy and procedures to prevent other victims from having to go through the same experience.

Title IX and Victim Confidentiality

What does Title IX require schools to do to protect a sexual assault victim's confidentiality? First, Anna should have been told that school employees are required to report information they receive about sexual assault. If she wanted the information to remain confidential, she should have been referred to confidential resources, such as religious and professional counselors.

Second, Title IX requires schools to respect a victim's request for confidentiality in a sexual assault investigation and response except when it interferes with the school's ability to stop harassment and protect the safety of its students. The OCR's 2001 Handbook explains: 

In all cases, a school should discuss confidentiality standards and concerns with the complainant initially. The school should inform the student that a confidentiality request may limit the school’s ability to respond … If the student continues to ask that his or her name not be revealed, the school should take all reasonable steps to investigate and respond to the complaint consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.

In its 2008 publication, "Sexual Harassment: It's Not Academic," the OCR listed three factors that must be weighed against the victim's request for confidentiality in light of the school's "responsibility to provide a safe and nondiscriminatory environment for all students":

·              seriousness of the alleged harassment;

·              age of the harassed student; and

·              other complaints that the same individual has harassed others.

....
Additionally, state or local laws may require schools to report incidents to the police.

In addition, the April 2011 "Dear Colleague Letter" included a fourth factor that must be weighed against the victim's request for confidentiality: "the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an 'education record' under [FERPA]." The bottom line is that the victim should be told if the school cannot ensure confidentiality.

The OCR's latest official word on victim confidentiality is found in the Resolution Agreement between the OCR and the University of Montana. As part of that settlement agreement, UM adopted a policy with "an assurance that the University will keep the complaint and investigation confidential to the extent possible." Below is UM's policy protecting victim confidentiality:

UM's Policy 507 – Title IX adopted May 25, 2012

IV. Confidentiality of the Alleged Victim:

Student confidentiality will be respected to the extent possible. Even if the alleged victim requests confidentiality or asks that the complaint not be pursued, a campus is required to:
A. take all reasonable steps to investigate and respond to the complaint to the extent possible consistent with the alleged victim’s wishes;
B. notify the alleged victim that the failure of the alleged victim to pursue a complaint may limit the campus’ ability to fully address the matter; and
C. report the incident or assault to local law enforcement authorities if a health or safety emergency as defined by state or federal law is found by the campus to require such reporting.

Summary

To summarize, these are the essential points that college employees need to know about a victim's confidentiality:

·              if you expect to or do receive information about sexual assault, explain that you need to make a report to the school's Title IX coordinator

·              maintaining confidentiality may limit the school's ability to fully respond to the alleged assault

·              students who desire a confidential conversation should meet with a counselor or other confidential resource

·              if individuals prefer no action be taken at that time, let them know you will share their preference with the Title IX coordinator

·              explain to the victim that their request for confidentiality will be respected to the extent possible, however:

o               the school must respond to sexual assault effectively and prevent harm to other students

o               the accused student may have a right to receive information about the allegations if it is included in the school's education records

Finally, if disciplinary action is not possible because the victim insists on confidentiality, the OCR says the school "should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence." Those "other steps" are education and prevention, such as defining sexual misconduct, deciding what the school's policies and disciplinary procedures are, and possible sanctions for violating the school's rules of student conduct.

Social Media and Sexual Assault

Audrie Pott's sexual assault was just the beginning of her nightmare.  On Sunday night of Labor Day Weekend, Audrie passed out drunk at a friend's house.  Three male classmates took her to an upstairs bedroom, where they stripped her down to her underwear, drew on her naked body in green marker, and sexually assaulted her.  They also took pictures.  Audrie spent the next eight days frantically trying to find out how far those pictures had spread, and enduring the abuse of classmates who had already seen them.  Then she hung herself.

Sadly, this narrative of the tragic results of the combination of sexual assault, bullying, and social media is by now a familiar one. 17-year-old Rehtae Parsons hung herself after a year of bullying prompted by the distribution of photos showing her rape. The nationally infamous rape case in Steubenville, Ohio, in which two high school football players were convicted of sexually assaulting a sixteen-year-old girl, featured similar bullying and documentation of the assault on social media. Two thirteen-year-old girls were called "whores" on Twitter after a pair of eighteen-year-old football players were arrested for statutory rape.

In an age when everything that's newsworthy, and plenty that's not, is Tweeted, Facebooked, or Instagrammed, it may come as no surprise that social media has invaded even this particularly ugly aspect of our lives. However, sexual violence activist and expert Dr. Rebecca Campbell, whose research we've written about in the past, suggests that the relationship between sexual assault and social media may be deeper and more disturbing. "Sexual assault is a crime of power and dominance," she says. "By distributing images of the rape through social media, it's a way of asserting dominance and power to hurt the victim over and over again."

Of course, as the cases described above demonstrate, the continued trauma endured by sexual assault victims through social media isn't perpetrated solely by their attackers. Any number of their peers share photos and videos or use social media as a platform from which to bully victims, often for having reported the assault. In this way, social media discourages victims from reporting these crimes by facilitating a reaction to assault comparable to the secondary victimization suffered at the hands of law enforcement that we've previously written about. Such bullying seems to be both a symptom of and a contributing factor to a society that blames victims for their sexual assaults.

Yet the very photos and videos whose dissemination can torture victims of sexual assault can also lead to convictions for their assailants. Indeed, visual images like these can be essential to securing a criminal conviction in cases of sexual assault, where muddled recollections and conflicting accounts can make it very difficult to prove a perpetrator's guilt beyond a reasonable doubt.

Moreover, some of the very aspects of social media that make it such a virulent breeding ground for bullying also make it the ideal platform for survivors to find communities where they can share their stories and receive much-needed support.  The anonymity of such spaces makes it possible for survivors not yet ready to reveal their experiences to friends and family to share their stories, allowing them to spread awareness and, in some cases, help the healing process.

Perhaps its most important aspect though is the potential role social media plays to prevent assaults in the first place by changing the culture that tolerates and indeed encourages such behavior. In an article for the Fordham Observer, Alissa Fajek argues that the outrage over cases like Steubenville, often fostered and spread via social media, can help to spread awareness and begin to change that toxic culture.

Clearly, the story of social media and sexual assault is more complicated than social media simply being used as a platform to fight sexual assault or as an extension of the crime itself. Because, like any other tool, the person using it must decide whether social media is used to hurt or to heal. Educating students about the enormous impact their decisions have on the survivors of sexual assault suggests the importance of harm-prevention training. The more students know about social media's effect on sexual assault victims — the damage it can cause or, alternatively, its power to solve the problem of sexual assault — the better equipped they'll be to use social media in way that heals instead of hurts.

Privacy vs. Safety: Does FERPA Apply to Sexual Assault Cases?

Navigating the muddy waters between protecting student privacy and addressing complaints of sexual misconduct still causes confusion. Does FERPA prohibit disclosure of information about sexual assault cases? Many perceive a conflict between the confidentiality of student records under the Family Educational Rights and Privacy Act (FERPA) on the one hand, and the competing rights of sexual assault victims and other students under Title IX and the Clery Act on the other.

While this post is only intended to address whether FERPA prohibits disclosure of information about peer sexual assault complaints, a few basics are in order. As the Department of Education explained in a 2006 interpretation letter, FERPA protects "education records" maintained by or for the school which are tangible documents (including media and electronic data). FERPA does not, however, protect personal knowledge or observations:

FERPA applies to the disclosure of tangible records and of information derived from tangible records … As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.

Therefore, even if an education record exists containing the same information, FERPA doesn't protect the confidentiality of information independently obtained from personal knowledge or observations.

In addition, the education records must contain "information directly related to a student" — in other words, they must directly or indirectly identify the student. So far this seems pretty straightforward. However, the various exceptions to FERPA protection when sexual assault is involved seem to cause confusion.

Starting with a clear exception, schools may disclose — without the accused student's consent — the final results of a disciplinary proceeding involving alleged acts that, if proven, would constitute a violent crime or non-forcible sex offense:¹

• to anyone if the alleged perpetrator is found to have committed the offense
• only to the alleged victim if the accused is not found responsible. In this case the victim must be told not to disclose the outcome to a third party

The result of a disciplinary proceeding is not final until after any appeals. Once the result is final the school may disclose the student's name, the offense, and any sanction imposed, as indicated above.

Another slightly more confusing exception allows disclosure of the investigative reports and other records²of campus police and security units involving sexual assault complaints if they are created for a "law enforcement purpose." Whether the records qualify for this exception depends on (1) who created the records, (2) why they were created, and (3) who maintains them.

Under FERPA, if the records are created "exclusively for the purpose of a possible disciplinary action against the student" those records would be "education records." However, the ED Secretary has said that it "expects such occasions to be very rare, especially when incidents involv[e] criminal conduct by students at postsecondary institutions." Thus, if a student reports a sexual assault to campus police and other security staff their records are probably not protected from disclosure by FERPA.

A couple of cases illustrate how FERPA has been misapplied at the expense of student safety. Last year Oklahoma State University did not alert campus or local police when a victim reported to Student Affairs that he'd been molested. Over the next month the accused molester committed more assaults. Finally, a student newspaper reporter received an anonymous tip and contacted police, which led to the perpetrator's arrest. In September, Nathan Cochran pled guilty to three criminal counts of sexual battery for fondling and performing oral sex on other male students while they slept in his fraternity house. Cochran was suspended from OSU for three years.

When the OSU victim first came forward, no tangible education record existed relating to the accused student. LeRoy Rooker, the ED's chief FERPA enforcer for 21 years, said "Just forget FERPA at that point."

And even if an education record existed a third exception, FERPA's health and safety exception likely applied. Again, Rooker provides guidance in ED's 2006 interpretation letter: 

This provision allows an educational agency or institution to disclose personally identifiable information from education records, without prior written consent,

in connection with an emergency [to] appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons. 20 U.S.C. §1232g(b)(1)(I); 34 CFR §§99.31(a)(10) 99.36.³

In another case, Swarthmore College's disciplinary proceeding found the accused student responsible but the victim felt the sanction did not protect her or other students in part because the accused's identity was never revealed by the school. Though her assailant was found responsible for rape and suspended, he will be allowed to re-enroll after she graduates. In the meantime, his suspension wasn't made public so he continues to visit the campus and present a safety risk. When Liz Braun, Dean of Students at Swarthmore, asked for student feedback about the school's College Judiciary Committee process, the victim described the CJC process as "unnecessarily torturous." She asked a valid question in her response to Dean Braun: "Should the outcomes of CJC hearings and appeals be made public with identifiable names of perpetrators?" In fact, the accused student's name could be made public if the CJC's final decision found him responsible. This would not violate FERPA and could help protect other students.

Responding to a question about obtaining information from schools regarding sexual assaults against college students, ED Secretary Arne Duncan encouraged journalists to seek assistance from Department of Education staff if they encounter schools misapplying FERPA. While participating in a conference call organized by the Education Writers Association, Duncan stated, "Where districts or schools are — I'm not saying they are — but if they're sort of hiding behind FERPA and not sharing simple information, we're happy to try and assist there."

A journalist from Student Press Law Center said she plans to follow up with ED's chief privacy officer, Kathleen Styles. We'll be looking for further guidance on this issue but hope that in the meantime this post provides some explanation of what is and isn't a legitimate use of FERPA when it comes to protecting the privacy of students accused of committing sexual assault.

---

<sup>1. While this post focuses on sexual assault complaints, this exception to FERPA protection covers a number of violent crimes and non-forcible sex offenses listed in 34 CFR §99.39 and 34 CFR §99.31(13)and (14) covers the conditions that allow disclosure of information without consent.

2. 34 CFR §99.8(b)(1) defines "law enforcement records" as "records, files, documents, and other materials that are — (i) Created by a law enforcement unit; (ii) Created for a law enforcement purpose; and (iii) Maintained by the law enforcement unit." While FERPA allows disclosure, the confidentiality of records maintained by a school's security staff may be restricted by the school's policies or applicable State law.

3. 34 CFR §99.31(10) provides that prior consent not required to disclose information where "The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36."</sup>

Prevention Must Include the LGBTQ Community

Recent research suggests that members of the LGBTQ community are just as—if not more—likely to be victims of sexual violence as their heterosexual peers. The Centers for Disease Control and Prevention 2010 Findingson Victimization by Sexual Orientation found that nearly half of lesbian women, four in ten gay men, half of bisexual men, and three-quarters of bisexual women have been victims of sexual violence in their lifetime. Such alarming figures make it clear that sexual assault is a problem that affects students of all sexual orientations. Moreover, the often marginalized position of the LGBTQ community compounds and complicates numerous issues faced by survivors of sexual assault.

For example, as we've written about in the past, it's not unusual for survivors to be discouraged from reporting by the fear that they will encounter hostility on the part of law enforcement and other first responders. The fear of hostility motivated by homophobia compounds the problem for members of the LGBTQ community. For some LGBTQ survivors, reporting a sexual assault could mean "outing" themselves before they're prepared to reveal their sexuality. There's also the fear that, because the conventionally accepted narrative of sexual violence focuses on heterosexual assaults, an assault involving members of the LGBTQ community will be sensationalized.

Another ugly fact is that homophobia not only contributes to underreporting of sexual assault in the LGBTQ community, but can also motivate assaults against members of that community. According to the University of Minnesota Morris Violence Prevention Center, sexual assault is often used as a weapon by those who wish to humiliate LGBTQ people for their sexual orientation, or (especially in cases where a lesbian woman is assaulted by a straight man) somehow "cure" them of their orientation. The unhappy overlap between hate crimes and sexual assault is especially important for administrators to be aware of in light of the Campus SaVE Act's requirements for schools to include hate crimes based on sexual orientation or gender identity in their annual security reports.

These issues make clear the importance of harm-prevention programming that encompasses the entire spectrum of a campus population. The current conversation about sexual assault on college campuses is, of course, incredibly important and a welcome change from decades of silence on an issue that won't go away unless it's addressed directly. But does the conversation campuses are having about sexual violence include all of the students affected by the problem? A conversation about sexual violence on college campuses that revolves around or even assumes scenarios involving heterosexual male perpetrators and heterosexual female victims fails to address the needs of survivors whose experiences fall outside the range of that common but by no means universal experience.

 Administrators need to consider programming designed to help all students by covering the unique problems faced by members of the LGBTQ community. By bringing these issues into the conversation, schools encourage students to report sexual assault, regardless of their gender, race, or sexual orientation.  Inclusive and effective prevention training must recognize the grim but important truth that sexual assault can affect any student on campus.

Why the Semantics of Rape Matter

In December of 2011, the FBI amended its definition of rape from "the carnal knowledge of a female, forcibly and against her will," to "Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." Phrases like "carnal knowledge" and the insistence that rape victims must be female might suggest the outdated definition’s antiquity—in fact, it had stood since 1927.

How rape is defined is an issue with consequences that go beyond the merely semantic. Consider, for example, this recent post on the gulf between the prevalence of sexual assaults as reported by researchers like Mary Koss (who found that 1 in 4 women are the victims of rape or attempted rape before leaving college) and as reported by the FBI, which, in 2012, reported 26.7 forcible rapes per 100,000 inhabitants. The discrepancy can be attributed, at least in part, to how each study defined terms like "rape" and "sexual assault."

The FBI’s new definition will apply to how it collects and reports statistics like the ones quoted above—those regarding the incidence of rape. According to Attorney General Eric Holder, "This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes." Indeed, an emphasis on penile-vaginal penetration and the use of force limits what acts are counted as rape. With that in mind, it is particularly alarming to realize that for 84 years the FBI was using a definition of rape that didn’t include date rape or rape involving a male victim, perpetuating the myth that rape is only committed by strangers who jump out of the bushes.

The real-world consequences of how rape is defined make the history of the word itself both significant and instructive. Our English word "rape" is derived from the Latin raptus or rapere.  Its first appearance in British law refers not to any sort of sexual assault, but instead to violent theft of property. That linguistic connection is no coincidence. In the 19^th century restitution for a rape resulting in pregnancy was paid not to the victim but to her father, and the rape of a woman by her husband was not recognized as a crime until the latter half of the 20^th century. The conceptualization of rape as an attack on a woman, instead of the appropriation of the commodity that is her chastity, is a shift that has taken too long to come.

Today, a long-overdue shift in the way we define and conceive of rape is occurring, evidenced by the FBI’s updated definition. The FBI’s old definition bears no small resemblance to the English common law definition of rape: "carnal knowledge of a woman, forcibly and against her will."  Matthew Lyon, writing for the Journal of Criminal Law and Criminology, parses this definition into three elements: "intercourse, force, and lack of consent." Now that women are widely viewed as people instead of property, the most important change in the way we define rape today is the shifting emphasis from the second element of that ancient definition, force, to the third, lack of consent.

That shift is obvious in the new FBI definition, which notably makes no reference to force.  It also has important legal consequences. At one time many states required rape victims to prove a certain degree of physical resistance beyond a reasonable doubt in order to secure a conviction—so as to prove that force was involved in the sexual assault.  Thanks to rape’s shifting definition, many states have loosened or, in some cases, completely removed the requirement for "rigid resistance" on the part of the victim—a positive outcome, given recent research suggesting that for many sexual assault victims, physical resistance of any kind becomes physically impossible once the assault is initiated. 

Similarly, thanks to the new found emphasis on consent (or rather the lack thereof) as opposed to force, certain states have begun to define the post-penetration continuation of intercourse after consent has been withdrawn as rape. Previously, it was widely held that once a woman gave consent and penetration had occurred, there was, at least legally, no turning back. Emphasizing consent over force, however, leads logically to a different conclusion. Consent can be withdrawn at any time and once it has continued intercourse becomes rape.

The blunders of insensitive politicians have brought notoriety and national attention to the issue. In 2008, Tennessee Senator Douglas Henry declared that rape today "is not what rape was." He elaborated, saying that, "Rape, when I was learning these things, was the violation of a chaste woman, against her will, by some party not her spouse." In an even more infamous incident, former Rep. Todd Akin claimed last year that, "If it's a legitimate rape, the female body has ways to try to shut that whole thing down." Such gaffes point to the suspicion with which many still view a definition of rape based on lack of consent as opposed to the use of force.  That such gaffes are being made by people who hold positions of significant power points to what is at stake in this ongoing debate.

In fact, as recently as 2011, the No Taxpayer Funding for Abortion Act, which, as its name might suggest, would have banned federal subsidization of abortions, made exception specifically for cases of "forcible rape." The distinction raised an outcry from women’s group, who pointed out that such language could exclude victims of date rape or statutory rape. "Forcible" was eventually removed from the bill, although it still failed to pass the Senate.

A common refrain of activists opposed to that particular qualification was that "rape is rape." However, even as rape’s meaning has shifted to focus on a lack of consent, a whole host of qualifiers has sprung up, often to make the distinction between rape that involves force and rape that doesn’t.  Date, statutory, legitimate, forcible, gray, the list goes on and on. The question is whether those qualifiers clarify, or merely diminish? To which one might answer that the definition of "rape" is not merely semantic for the victims.

Standards of Proof

In a typical "he-said-she-said" case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused's and victim's credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower "preponderance of evidence" standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher "clear and convincing evidence" standard was applied and the decision was reversed.

The Department of Education has in fact established "preponderance of evidence" as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, "in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)."

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof¹ requires a different level of confidence in the facts supporting a decision:

• beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
• clear and convincing requires at least 70-75% confidence that the facts support the decision
• preponderance of evidence requires at least 50.1% confidence that the facts support the decision

In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.²

The "beyond a reasonable doubt" standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.³  The 18th Century English jurist William Blackstone explained it this way: "It is better that ten guilty persons escape, than that one innocent suffer."⁴  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a "high probability" or "reasonable certainty" that the weight of evidence favors the decision. It is applied in civil cases involving more than "mere loss of money," such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.⁵

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, "[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous."⁶

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM "blueprint," preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, "substantial evidence," is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"⁷ Strictly speaking, this standard only requires a "substantial" amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The "substantial evidence" standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student's failure to meet academic standards "calls for far less stringent procedural requirements," in terms of notice and hearing, than a student conduct violation.⁸

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,⁹ a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a "conviction for 'possession of narcotic drugs' in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person's good name and reputation." The court also pointed out that a one-term suspension from school "is a harsher punishment than he was likely to receive from either a state court ... or a federal court, for a first-time offense of simple possession of marijuana."

Under these circumstances, the court found that "any standard lower than a 'preponderance of evidence' would have the effect of requiring the accused to prove his innocence" because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a "constitutionally adequate" standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn't specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,¹⁰ another federal court refused to overturn the university's decision to suspend two public university students after they were found guilty of sexual assault even though the university's decision was based on substantial evidence. The court found the disciplinary proceeding, while "not ideal," was fundamentally fair. The court explained the tension between these two principles:

A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.

The middle ground was described as "whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial." Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as "a case of differing perceptions and interpretations of the events in question." It turns out that the deciding factor was that some of the complainant's statements began with "I think" or "I don't think." The official interpreted this as a "hesitant and equivocal response" and concluded that the complainant's credibility did not meet the higher standard of proof.

The ED found that UM's handling of that case on appeal showed an "incomplete understanding" of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed "more training on how to evaluate evidence and the appropriate evidentiary standard to assess it."

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what's at stake:

Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof "is more than an empty semantic exercise."¹¹

It has also been suggested that school officials deciding sexual assault cases may "unwittingly require clear and convincing evidence" regardless of the appropriate standard because of the serious consequences to the accused.¹² What we're left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims' behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we'll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.

---

<sup>1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: "First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened ... In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. .... A second proposition ... is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than "spiking the punch at an after-school meeting." However, the court did not rule on what standard of proof should be applied but only suggested that the "clear and convincing" standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, "Preponderance of the Evidence and Student-on-Student Sexual Assault." Boston College Law Review Vol. 53:1613, 1649 (2012).</sup>

Court Rejects Ban on Alcohol Advertising in College Papers

Until the U.S. Court of Appeals for the Fourth Circuit's recent decision limited its reach, the Virginia Alcoholic Beverage Control Board's (ABC) regulations banned all college newspapers from running alcohol advertising. The ban is part of a comprehensive strategy aimed at reducing underage drinking.

Many colleges and universities take a similar "environmental" or "community-level" approach to combat high-risk drinking. These interventions often enlist retailers and advertisers as allies in prevention efforts. 

But in 2006 two college newspapers affected by the regulation, The University of Virginia's Cavalier Daily and Virginia Tech's Collegiate Daily, sued the ABC, claiming the ban violated their First Amendment free speech rights.

The newspapers pointed out that a majority of their readership were over 21 (59-60% of the Collegiate Times' and 64% of The Cavalier Daily's readers). Therefore, while Virginia had a government interest in preventing underage drinking, the papers' wide distribution to people over 21 meant that the scope of the regulation was too broad.

In its decision, the Court sided with the college newspapers, acknowledging the state's interest but rejecting the regulation's overbroad reach.

"While commercial speech is protected by the First Amendment, there is a 'commonsense distinction' between commercial speech and other varieties of speech...[therefore] a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest."

Under this analysis, the Court concluded, "the challenged regulation fails...because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume...Accordingly, the challenged regulation is unconstitutionally overbroad."

The court also rejected the ABC's rejoinder that the regulation was justified by the state's more general interest in combatting abusive drinking, whether by underage or of-age drinkers. The Court cited a previous case that determined "states may not 'seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements.'"

The ruling, however, did not overturn the regulation itself. It only rejected the regulation as applied to these four-year college newspapers. As commentators have pointed out, where a paper's underage readership is the majority of its readership, the ban might still apply. A paper at two-year college, for instance, might still be subject to the regulation.

Critics of the ban have lauded the decision as a victory for free speech. Indeed, because school papers operate under tight budgets, the ban had a significant impact on the papers' finances and thus affected their primary mission of news reporting. According to estimates in The Cavalier Daily, lifting the prohibition would raise advertising revenue by 5 to 8%.

And while harm-reduction specialists may lament the loss of another valuable tool, the research is still divided on the effects of advertising on alcohol consumption. 

CampusClarity Wins Gold at the Annual Stevie Awards

Think About It won a Gold Stevie Award for Best Training Site at the 11th Annual American Business Awards. Think About It is CampusClarity's online training program on sexual violence and substance abuse for undergraduates and a compliance resource for college and university administrators.

The Stevies, considered the Oscars of the business world, are open to all U.S.-based organizations. With over 3,200 entries, this year's awards were a record-breaking size. More than 320 executives from across the country judged the entries.

The award-winning Think About It addresses campus sexual violence and substance abuse through a harm-reduction model that also helps schools comply with the Campus SaVE Act and Title IX.

The program is a collaboration between CampusClarity, a service of LawRoom, and the University of San Francisco's Division of Student Life. Instructional designers, student affairs administators, and lawyers worked alongside students to develop an effective course that would speak to students' college experiences.

Think About It includes bystander intervention training, customizable campus policies and resources, state specific laws on sexual and domestic violence, social norming exercises, a comprehensive discussion of consent, and in-depth reports on student attitudes and behaviors.

More than thirty-five colleges and universities nationwide use Think About It to train their students.

Accepting the gold for Think About It were Jeremy Beckman, Chief Instructional Designer at LawRoom, and Peter Novak, Vice Provost for Student Life at the University of San Francisco.

"It means a great deal," Novak said about the award. "It allows us to further collaborate on prospective projects and to really be of service to university students across the country."

LawRoom has been a leader in employment law compliance and training since it began in 1994. It has helped private and public companies, non-profits, and government entities comply with employment regulations. This year marked the first time the company participated in the American Business Awards or Stevies.

In addition to winning gold for Think About It, LawRoom also took home silver for its online sexual-harassment training, Lenses. 

The University of Montana's Cautionary Tale

"A rape-tolerant campus with ineffective programming, inadequate support services for victim survivors, and inequitable grievance procedures threatens every student." Diane G. Barz, retired Associate Justice Montana Supreme Court, Investigation Report dated January 31, 2012

Yearlong federal investigations of the University of Montana (UM) provide a cautionary tale for colleges and universities about how not to respond to reports of sexual assault. The U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) concluded that UM's responses to female students who reported sexual assaults were delayed, inadequate, and discriminatory.¹

ED's Title IX compliance review of UM produced "a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault." The DOJ's parallel investigation of UM's Office of Public Safety (OPS) resulted in a "roadmap for reform" that "will stand as a model" for other schools to prevent sex discrimination from interfering with an effective response to sexual assault complaints.

These problems were not confined to UM's Missoula campus. The DOJ also investigated the Missoula Police Department (MPD) and reviewed over 350 reports of sexual assault made by Missoula women, including UM students, received between January 2008 and May 2012. In the opening paragraph of its May 15, 2013 Letter of Findings, the DOJ concluded that the MPD's "response to sexual assaults compromise the effectiveness of sexual assault investigations from the outset, make it more difficult to [uncover] the truth, and have the effect of depriving female sexual assault victims of basic legal protections."

We'll first look at the underlying problems that contributed to UM's "rape-tolerant campus" because policies and procedures alone cannot fix systemic problems. Instead, they require an ongoing commitment to effect change in attitudes that turn into action. In later posts, we'll discuss the specific steps to Title IX compliance laid out in the "blueprint" and "roadmap."

 

Acknowledging the Problem

Before the federal investigations, UM had been grappling with its sexual assault problem. In December 2010, a female student reported to the MPD that four UM football players drugged and raped her.² While the MPD found there wasn't enough evidence for criminal charges, police informed UM's football coach about the allegations, but that report was not passed along to UM administrators until a year later.³

In December 2011, Royce Engstrom had been UM's president for just fourteen months when he received a call about the allegations. Once President Engstrom became involved, UM hired retired Montana Supreme Court Justice Diane Barz to investigate sexual assault reports at UM. Her final report found nine incidents reported between September 2010 and December 2011. Her recommendations included making information and resources on sexual assault readily available, training UM personnel on how to report and respond to sexual assault, and educating students on the consequences of risky behavior.⁴

Despite Barz's report, there was internal resistance to acknowledging UM's sexual assault problem. Around that time, internal email messages showed that UM Vice President Jim Foley questioned UM Dean of Students Charles Couture's use of the term "gang rape" to describe the December 2010 incident. Foley suggested that Couture should have called it "date rape." Couture replied, "Jim, I used that term [gang rape] when I accused the four football players of rape … because that is what it was.”

Over the next six months, Engstrom had fired UM's football coach and athletic director, and Foley had stepped down as UM's Vice President.

But just a month after Justice Barz's report, two more women complained to UM employees that they were sexually assaulted on the same night by the same male student, but he fled the country after UM's Dean of Students notified him of the charges and there was a one-week delay in reporting the incidents to local law enforcement.

 

Sexual Assault Case Reviews

Against this backdrop, the ED and DOJ reviewed UM's responses to twenty-three sexual assault complaints and ten sexual harassment complaints received by UM over the prior three school years. They found that UM's delayed and inadequate responses to complaints resulted in students not feeling safe on campus, suffering mental health problems, becoming suicidal, withdrawing from classes, or leaving the University altogether.

A sampling of cases discussed in the ED and DOJ's Joint Letter of Findings shows that UM's problematic responses were not confined to a particular area. In one case, the UM official investigating a sexual assault complaint knew that the victim was upset because she repeatedly saw her attacker on campus, but took no steps to protect her. Another sexual assault victim's roommate reported to their Resident Assistant (RA) that the victim was suicidal. The RA reported this to the Residence Life Office but there was no record of any action taken to ensure her safety. In yet another case, sufficient evidence was found to expel the student accused of sexual assault, but he was allowed to stay on campus for six more weeks to finish the semester. While the victim had left the University shortly after she reported the sexual assault, allowing her attacker to remain on campus may have left other students at risk of assault or harassment.

In two other cases, UM stopped its investigation because it "assumed the victims had stopped cooperating," even though UM had not received any communication from the victims that they no longer wished to continue with the grievance process.

Given these experiences, it is not surprising that other students were reluctant to report sexual assault because they feared retaliation, or that the University wouldn't respond, or, if it did, would respond negatively. One student said that University employees said things that indicated they didn't believe her. Another former student said she didn't report being sexually assaulted by a football player because they "could get away with whatever they wanted." Other students, community members, and faculty echoed that assessment, with some people saying that football players were treated like they were "Gods."⁵

And the DOJ's investigation of UM's campus security revealed another major problem: OPS's responses to student reports of sexual assault were "marked by confusion, repetition, and poor investigative practices."

For example, one OPS case narrative focused on the woman's alcohol-scented breath and "clean and undamaged" clothing. A victim advocate said OPS interviews were "painful" for the victims because they were interviewed by several officers who asked "very personal questions" without warning or explanation of their relevance, and students were also discouraged from filing a police report. Victims who did report their assault to the Missoula Police Department (MPD) had to relive their trauma by answering the same questions because OPS officers didn't provide MPD with enough information.

Two OPS officers described a sexual assault reported in a university residence hall as "regretted sex." And OPS Chief Taylor told investigators that the responding officer's job is to determine if the sexual assault is "provable." However, as the DOJ found, determining the veracity of the woman reporting a sexual assault before a thorough and unbiased investigation is completed not only indicates a failure to adequately respond to sexual assault, but "is particularly problematic given the data showing that the overwhelming majority of sexual assault allegations reported to the police are true."⁶

Based on ample evidence, the DOJ concluded that the OPS's "failure to adequately respond to reports of sexual assault is due at least in part to gender discrimination." By discouraging them from reporting sexual assaults to law enforcement, OPS discriminated against women, deprived them of basic legal protections, and put their safety at risk.

 

Systemic Change

With mounting evidence and media coverage of UM's sexual assault problems, Missoula City Councilman Dave Strohmaier told over 100 community members gathered to hear from UM and community leaders, "If there are systemic problems with how we are addressing violence within our community then we absolutely need to move aggressively on all fronts to address it."

As Justice Barz said, a rape-tolerant campus climate threatens every student. So, Title IX requires that when systemic problems discourage students from reporting sexual assault, schools must take "actions … to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment."

The ED's and DOJ's findings and conclusions in the UM case show that a top-down strategy is the foundation for creating a campus culture that does not tolerate sexual assault, and that other key components of the ED-DOJ strategy are education and effective procedures for handling problems when they arise.

In future blog posts, we'll dig deeper into the UM investigations and the resulting documents that provide the ED's and DOJ's "blueprint" and "roadmap" for schools on how to respond to sexual assault, create a safe learning environment, and avoid becoming a cautionary tale.

---

<sup>1. The settlement agreement relating to the Title IX compliance review among UM, the DOJ, Civil Rights Division, and ED, Office for Civil Rights is set forth in the Resolution Agreement dated May 9, 2013. The settlement agreement between the DOJ and UM Regarding OPS's Response to Sexual Assault is set forth in the Memorandum of Agreement (MOA) dated May 9, 2013.
2. Another female student reported that she was drugged and raped around that same time but did not want to pursue action against her assailants (Investigation Report dated January 31, 2012).
3. Missoula County Attorney Fred Van Valkenburg discussed the case with a local newspaper reporter, stating "I think that clearly the evidence in the case indicates that what happened was with consent, not without consent," he says. "There may have been sex with more than one person—that may seem sort of odd to people that someone might agree to have sex with more than one person—but I don't think because it's odd makes it automatically a non-consensual situation."
4. Justice Barz also noted, "I am disappointed with the lack of response from students with knowledge of house parties where the incidents were alleged to have occurred. Some that have been questioned have not been truthful. I believe 'lying' is also covered under the Student Conduct Code" (Investigation Report dated January 31, 2012).
5. In August 2012, the New York Times reported pending rape charges against two UM football players, and a "widespread feeling in Missoula that players had been coddled, their transgressions ignored or played down." In January 2013, running back Beau Donaldson pled guilty to rape and was sentenced to ten years in prison. Quarterback Jordan Johnson was acquitted on rape charges on March 1, 2013.
6. The Letter of Findings cites Kimberly A. Lonsway, Joanne Archmbault & David Lisak, "False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault," 3 The Voice 1-3, NDAA's National Center for the Prosecution of Violence Against Women (2009).</sup>