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UNC Title IX Training Seminar, FEB 2013

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MHA presentation to the UNC System on Title IX in the higher education environment.

MHA presentation to the UNC System on Title IX in the higher education environment.

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  • This guy on the other hand…. [Perhaps, to be honest, this is a good illustration about how we all felt when we read the DCL. There are a lot of inconsistencies and ambiguities. But, we have to take it very seriously – it’s an important guidance document regarding your institution’s Title IX compliance obligations. (NACUA: The DCL has 41 musts. 71 shoulds. 17 recommends. 46 mays!!)So what do you have to do?According to the DCL, assuming that your institution is covered by Title IX of the Education Amendments Act of 1972 and its implementing regulations, which I assume all of your institutions are (given that presumably all of you receive federal financial assistance), then you are required to designate a Title IX Coordinator. So what is the role of the Title IX Coordinator? You are responsible for ensuring that your institution complies with Title IX. Your role is to ensure that your institution is complying with its Title IX obligations (including the prompt and fair resolution of complaints, education and training, and taking prompt and effective action to end the harassing conduct).This means:*You oversee the investigation and adjudication of all complaints (but you are NOT a factfinder);*You identify any patterns or systemic problems that arise;*You are available to meet with students as needed. *You may designate coordinators who will carry out specific functions*Only one coordinator can have ultimate oversight responsibility – those in a deputy or supporting role, like me, should have their responsibilities clearly spelled out. We want transparency and objectivity. My boss needs to ensure that I handle complaints consistent with my Title IX obligations. To that end, she can’t serve as a fact-finder. In fact, OCR says that Title IX Coordinators cannot have other job responsibilities that create a conflict of interest – like also being a disciplinary board member or general counsel.*You have to have the requisite training and education (good thing you are all here – a good first step). You need to know what constitutes sexual harassment, including sexual violence, and you must have a very good understanding of your institution’s grievance procedures.
  • PRACTICAL TIPS:*You can only do your job to the extent that you have the respect and trust of others. *You must not be an advocate for individuals or a cause (beyond Title IX compliance)…this is inconsistent with being seen as neutral and the guardian of Title IX…it also gives you more sway when an individual case is going wrong and you have to step in.*The integrity of the process is paramount. Neutrality and objectivity are key – also making sure that the people responsible for carrying out the investigation and adjudication process are doing it consistent with their obligations. *Prompt, thorough, impartial, and equitable investigations.*Prompt resolution and action taken that is designed to end the harassment. Also, follow up with the parties is critical. You must also be mindful of ensuring that your policies are in compliance with Title IX and DCL (mention Middlebury’s policy overhaul) and that you follow your procedures to the letter. You are also responsible for ensuring that appropriate education and training is provided to employees and students (I will talk about that in a moment)
  • It is critical that you sure relevant people know that you’re the Title IX coordinator. They also need to know where to find you. So you need to get your name out there every way you can. So, who’s “relevant”? According to OCR, every student, faculty and staff member.You also must publish a Notice of Nondiscrimination that states that you do not discriminate on the basis of sex in your education programs and activities and that Title IX requires that you not discriminate in that manner *The Notice of Nondiscrimination should state that inquiries concerning Title IX be directed to your Title IX Coordinator – and you need to include contact information for that person. *The notice must be widely disseminated. (Middlebury has a Notice of Nondiscrimination, Anti-Harassment/Discrimination Policy, Sexual Misconduct Policy, Student Resource Guide, Student-Athlete Resource Guide, and an e-mail to all students every year with links to the above policies as well. It is well publicized on our web and we make printed copies available for anyone who needs them). We have this in other official College publications as well (including our graduate programs). I keep a file of every all campus communication I have regarding the dissemination of this information. We also e-mail the Notice annually.*You should publish this in every official publication of your institution – more is better. There can never be overkill as far as the OCR is concerned!*The notice must also specifically state the role of any Title IX designees (e.g. who will handle complaints by faculty staff or students). Talk about what Middlebury does: I am the Title IX Coordinator’s designee for the purposes of overseeing investigations and adjudicating sex discrimination complaints, including sexual harassment and sexual violence, training and education. My Colleague, the Judicial Affairs Officer, oversees a similar process concerning the adjudication of complaints under our separate Sexual Misconduct Policy. We are the two Title IX Coordinator designees and this is spelled out in all of our publications.I report to the College’s Title IX Coordinator – she is also the Dean of the College and Chief Diversity Officer. It’s a good system – she is there to ensure that I am following our policies and procedures as well as OCR’s mandates.Bottom line here : You need to do whatever it takes to get your name out there.
  • First step to building reputation and trust = building relationships. You must have an excellent team to support you in the process.With whom should you build these relationships? Everybody up the chain from you – VPs. President, Board. (if you lack support from your leadership, good luck….and then, Student affairs, campus police, town police, athletic department, res. Life staff, and faculty). Everyone needs to be on board with what you are trying to do. Challenge: Budget and human resources. How do you get the budget you need to do investigations and education? Especially if you are a small school? One complicated case could wipe out your internal resources (e.g., public safety). Challenging to bring investigators in from the outside as they don’t know your campus or the players. That’s why training them is key, too.We have done staff meetings with President’s staff, all of student life, including Public Safety and athletics. I have done trainings for all of these departments. This has helped in raising awareness about my role as the Title IX coordinator’s designee in enforcing our Anti-Harassment/Discrimination policy. We have also trained our Community Judicial Board on these issues. Get to them before you’re thrust upon them…Introduce them to each other before you all get to know one another in a difficult situation (e.g., extremely public sexual assault case). Also allow you to do table top exercises or similar activities to figure out and fix the weaknesses in your systems/processes. BUT..make it valuable…people know when you’re wasting their time or going through the motions….and your reputation and efforts will suffer as a result. It’s helpful to develop a hypothetical scenario and to have your staff go through the process.Leverage the relationships you already have (e.g., OCG things you’re great…have them tell others, or introduce you to others…if those individuals respect the OGC). Your relationship with counsel is key. Don’t hesitate to contact them.Also, build a relationship with OCR. I have had them on our campus to do training – and I often consult them on various issues. They are very helpful. I think it’s critical that you understand that they see themselves as a resource for institutions. USE THEM!!!
  • Education and trainingTraining: Employees likely to witness or receive reports: (faculty, student life staff (including res. life advisors), campus police, counselors, deans, administrators, school counselors, general counsels, student athletes and coaches). We have done live training to entire student life staff, president’s staff, public safety, our judicial board; and we have done on-line sexual assault training for incoming students “My Student body” and “Step-Up’ - -which is live training, with a sexual assault scenario, that we give during freshmen orientation week. Other thoughts: Orientation programs for new students, faculty, and staff; student athlete orientation, web sites (we have an SAOC web site that provides detailed information on resources and complaint procedures, and what to do if you have been a victim). Campus-awareness events/speakers. Publications (we have posters in all of our bathrooms).We are also using UE’s online training for faculty and staff, and I did a recent training for the whole coaching staff on our new policy, procedures, resources, and reporting requirements. We are hoping Margolis Healy will come up with an online training for all students, faculty, and staff in the area of sexual harassment and sexual violence. This would solve the problem. The task of educating the entire campus is daunting, at best. We also have a Sexual Assault Oversight Committee, and we are looking at bringing speakers to the college and planning certain student-driven events to raise awareness.What is required? OCR is vague on this point. At a minimum, we need to educate on the following: How to recognize sexual harassment and sexual violence, the institution’s policies and procedures (reporting and complaint procedures), the consequences of violating policies, information aimed at encouraging students to report to the school and law enforcement; where and to whom to report; how to avoid sexual violence (alcohol connection); what happens during an investigation, possible remedies and outcomes, interim orders; and resources available to victims (e.g. what to do immediately – medical and counseling resources, academic support, other resources and accommodations for the complainant). Periodic surveys on the climate – analyze your data to see if your response is effective – continue evaluating your practices and procedures for effectiveness. (I report to the president each year re harassment stats…). Under Clery, we keep track of sexual assault reports as well. It’s your responsibility to look at that data – don’t just put in on the shelf. Use it to figure out where training and education and other remedial measures are needed.
  • PreventionOnce you’ve built relationships, get the group together (or you can do this yourself to start) and start pre-thinking the difficult issues that will come up:How will you deal with forensic evidence? Who will be your expert as recommended by the DCL?DCL says: “If an investigation or hearing involves forensic evidence, that evidence should be reviewed by a trained forensic examiner.” I assume they would take the same position with respect to other medical evidence.Same questions for other medical evidence?What will you do in a case when local police or the prosecutor as for more time? (DON’T GO INTO THIS)Schools cannot wait for the conclusion of a criminal investigation or criminal proceeding to initiate their own Title IX investigation. Institutions must take immediate steps to protect the student in the educational setting – so you must not deviate from this obligation despite what the police or prosecutor want you to do. However, the DCL does say that a school may need to delay, temporarily, the fact-finding portion of a Title IX investigation while the police are gathering evidence – but once notified that the police department has completed its gathering of evidence (as opposed to the filing of any charges or the ultimate outcome of an investigation – you can’t wait for that), you must promptly resume and complete our fact-finding. In the meantime, notify the students of rights, grievance process, and take interim measures. This should not be temporarily delayed by police department evidence-gathering.“Any MOU with a local police department must allow the school to meet it’s Title IX obligation to resolve complaints promptly and equitably.”What will you do with a case that receives intense media scrutiny? Who will be your spokesperson and why? How will you deal with FERPA constraints and still be responsive to media requests? (Your PR PERSON MUST BE IN CLOSE CONSULTATION WITH COUNSEL. INVOLVE YOUR PR PERSON IN AS MANY MEETINGS AS POSSIBLE – KEEP DETAILS AND NAMES OUT OF THE PRESS – message should be that you treat these claims very seriously and that we are investigating the matter – cite student privacy as reason you can’t give more details.). Get Jeff’s thoughts here as well.What about the reluctant complainant? Think of various options…climate assessment? Interim steps? No Contact Order?? Academic Accommodations?This is the biggest challenge. Sometimes all we can do is provide a No Contact Order and academic accommodations. But this gets tricky –especially if you are in a small institution and the two students are in the same major. Remember, there is no finding against the alleged perpetrator. He/She is still a student in good standing.
  • Compliance –Are your policies/procedures compliant? (Read DCL carefully, consult with counsel, and make sure you incorporate all of their language and processes-talk about what we did in response to the DCL) Are they easy to understand, easy to locate and widely distributed? (standard in DCL)(We have it on posters, in bathrooms, too)Are they being applied as written? Pull a few hearing tapes, hearing results, investigation reports…what do you find? Do you need more/different training?Make a plan to become compliant [quickly] in the areas where you see deficiencies. (And don’t be afraid to ask OCR questions)What if your administrators won’t take steps towards compliance, such as your Dean of Students? Go to the next level, or all the way to the Board if you have to. Neither OCR nor the courts (or your Board) want to hear “I tried, but they wouldn’t do it.”Talk about what we did here at Middlebury in response to the DCL (Sexual Misconduct policy, Anti-Harassment/Discrimination Policy, and Nondiscrimination Statement (including getting rid of our hearing process in favor of a single investigator model).
  • Ensure your investigators/hearing staff are cared for if you want to keep them. And you do – a skilled investigator who understands your institution and its culture (e.g.,. How to get things done) is hard to replace. This job can be extremely taxing and there is a high risk of burn out. Keep that in mind as cases arise and deadlines loom.Make sure others know their jobs are hard, can be emotionally draining and can’t necessarily be done quickly. They need time to do their jobs and time off to rejuvenate.Make sure they have somebody knowledgeably to consult with on job issues (you, a peer at another institution, etc.)Make sure they have the respect and authority to get what they need to complete their investigation (e.g, access to all records, help with recalcitrant administrators)Make sure they have the skill and training to do their jobs.MAKE SURE YOUR INVESTIGATORS ARE TRAINED (not only in the area of sexual violence – but in your school’s policies and procedures and in terms of dealing with students and the impact of trauma on memory). CHALLENGE: Finding trained investigators outside your institution. Public Safety staff is not always ideal for doing these types of cases (it’s particularly a problem on small campuses). We have been interviewing outside investigators and we have retained Margolis Healy to do their training. There will be scrutiny by OCR around the skill and training of your investigators. Role of counsel in this process is important too.
  • Importance of being consistentPeople are watching – despite all of our admonitions about confidentiality (which, by the way has limits in sexual violence cases anyway), people around campus will discuss cases and outcomes. Given that Clery requires that, when the conduct involves a sex offense (forcible or non forcible) you have to disclose the decision and the disciplinary outcome to the victim. You also can’t condition the disclosure on the victim’s agreement to remain silent. She or he can put it in the newspaper the next day.All of this is to say that you need to be consistent – people will know if you aren’t – and that will undermine the integrity of the process. In a system where we want to foster trust and encourage reporting, you can’t afford to be otherwise.
  • Most importantly, be flexible…not the opposite of being consistent. Always make decisions based on what your policy says, but with an eye toward the circumstances at hand.
  • Transcript

    • 1. University of North Carolina SystemTitle IX and Campus Security Authority Training Program February 13-14, 2013
    • 2. Agenda • Introductions • About MHA Housekeeping Issues • Schedule • Topical Areas • Digital Guidebook© Margolis Healy & Associates, LLC 2
    • 3. Faculty • Steven J. Healy • Gary J. Margolis, Ed.D. • Jeffrey J. Nolan, Esq.© Margolis Healy & Associates, LLC 3
    • 4. Schedule Day 1 8:30 a.m. – 8:45 a.m.: Opening & Introduction 8:45 a.m. – 9:45 a.m.: Setting the Stage: Overview of Title IX Institutional Obligations and Enforcement Context 9:45 a.m. – 9:55 a.m.: Introduction to Capstone Case Study 10:00 a.m. – 12:00 p.m.: Understanding Sexual & Gender Violence on Campus 12:00 p.m. – 1:00 p.m.: Lunch 1:00 p.m. – 2:00 p.m.: Duties & Responsibilities of a Title IX Coordinator 2:00 p.m. – 2:15 p.m.: Inject 1, Capstone Case Study Discussion 2:20 p.m. – 3:20 p.m.: Defining Roles & Confronting Conflict 3:20 p.m. – 3:30 p.m.: Break 3:30 p.m. – 4:30 p.m.: Complaint Intake, Confidentiality & Conducting Investigations 4:30 p.m. – 4:45 p.m.: Injects 2 & 3, Capstone Case Study Discussion and Day 1 Wrap-Up© Margolis Healy & Associates, LLC 4
    • 5. Schedule Day 2 8:30 a.m. – 8:45 a.m.: Day 2 Opening 8:45 a.m. – 9:45 a.m.: Conducting Hearings, Respecting Rights 9:45 a.m. – 9:55 a.m.: Break 9:55 a.m. – 10:40 a.m.: Navigating the Legislative Minefield – The Intersection Between Clery, FERPA, Title IX and Other Legislative Mandates 10:40 a.m. – 11:00 a.m.: Title IX Training, Education & Prevention Requirements 11:05 a.m. – 11:45 a.m.: Injects 4 & 5, Final Case Study Discussion 11:45 a.m. – 12:00 p.m.: Title IX Program Closing 12:00 p.m. – 12:30 p.m. Lunch© Margolis Healy & Associates, LLC
    • 6. Tweet Tweet @margolishealy© Margolis Healy & Associates, LLC
    • 7. SlideSharehttp://www.slideshare.net/margolishealy© Margolis Healy & Associates, LLC
    • 8. Setting the Stage: Overview of Title IXInstitutional Obligations and Enforcement Context Jeffrey J. Nolan, Esq.
    • 9. Agenda • Statutory, regulatory requirements and OCR guidance • OCR investigation/enforcement process • Sexual harassment/violence definitions • Scope of Title IX coverage • Summary of institutional obligations© Margolis Healy & Associates, LLC 9
    • 10. Title IX Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., prohibits discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance.© Margolis Healy & Associates, LLC 10
    • 11. Title IX Regulations - 34 C.F.R. Part 106 • § 106.4: Assurance of compliance required of recipients of federal financial assistance • § 106.8: Designation of responsible employee and adoption of grievance procedure • § 106.9: Notification of Title IX nondiscrimination obligations in education programs and employment • § 106.31: “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity . . .”© Margolis Healy & Associates, LLC 11
    • 12. Dep’t of Educ. Office for Civil Rights • “The mission of the Office for Civil Rights is to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.” • Enforces laws that prohibit discrimination in education on basis of race, color, national origin (Title VI), sex (Title IX), disability (Section 504 & ADA) and age (Age Discrim. Act 1975)© Margolis Healy & Associates, LLC 12
    • 13. Dep’t of Educ. Office for Civil Rights • OCR Activities, e.g.: - Investigates individual complaints - Conducts agency-initiated compliance reviews - Provides technical assistance to promote voluntary compliance© Margolis Healy & Associates, LLC 13
    • 14. OCR Enforcement Process • Theoretically, negative OCR findings can result in: - loss of federal funding through Dept. of ED proceedings, or - referral to Dept. of Justice for litigation© Margolis Healy & Associates, LLC 14
    • 15. OCR Enforcement Process • Practically, resolutions are negotiated with recipients, who take “voluntary remedial actions” - Policy issues: policy deficiencies are remedied - Example individual complaint remedies:  Providing changes in class and residential arrangements  Providing counseling, academic, medical and other supports and accommodations  Providing broad-based training for students, employees© Margolis Healy & Associates, LLC 15
    • 16. Civil Remedies • Title IX nondiscrimination obligations may be enforced in court by individual or class actions • “deliberate indifference” standard applies • Compensatory damages and injunctive relief available • Plaintiff’s attorney’s fees and costs available • State nondiscrimination statutes may provide additional remedies, different liability standards© Margolis Healy & Associates, LLC 16
    • 17. OCR Title IX Resources • April 2011 OCR Dear Colleague Letter: http://www2.ed.gov/about/offices/list/ocr/letters/collea gue-201104.pdf • OCR 2001 Revised Sexual Harassment Guidance: http://www2.ed.gov/about/offices/list/ocr/docs/shguid e.pdf • 2010 Dear Colleague letter on Harassment and Bullying: http://www2.ed.gov/about/offices/list/ocr/letters/collea gue-201010.pdf© Margolis Healy & Associates, LLC 17
    • 18. Sexual Harassment Definition • Unwelcome conduct of a sexual nature - includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. • Student-to-student harassment: - creates hostile environment if conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program. • The more severe the conduct, the less need there is to show a repetitive series of incidents to prove hostile environment, particularly if the harassment is physical (e.g. rape=hostile environment)© Margolis Healy & Associates, LLC 18
    • 19. Sexual Violence Definition • Sexual violence is a form of sexual harassment prohibited by Title IX. - Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol - An individual also may be unable to give consent due to an intellectual or other disability - May include rape, sexual assault, sexual battery, and sexual coercion© Margolis Healy & Associates, LLC 19
    • 20. Scope of Coverage • Title IX protects students from sexual harassment in an institution’s education programs and activities, including: - All academic, educational, extracurricular, athletic, and other programs of the institution - On-campus, off-campus, in transit, sponsored at other locations, etc.© Margolis Healy & Associates, LLC 20
    • 21. Scope of Coverage • Institutions may have obligation to respond to student-on-student sexual harassment that initially occurred off campus and outside institution’s education program or activity - If student files a complaint re off-campus conduct, institution “must process the complaint in accordance with its established procedures.” - Should consider and address on-campus continuing effects of off-campus sexual harassment (e.g., on-campus retaliation by alleged perpetrator or friends)© Margolis Healy & Associates, LLC 21
    • 22. Scope of Coverage • Title IX protects third parties from sexual harassment or violence in an institution’s education programs and activities - E.g.: Title IX protects a high school student participating in a college’s recruitment program, a visiting student athlete, and a visitor in a school’s on- campus residence hall • Title IX prohibits discrimination/harassment by faculty, staff • Title IX protects employees from sexual harassment© Margolis Healy & Associates, LLC 22
    • 23. Scope of Coverage • Title IX also prohibits gender-based harassment, including: - acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, even if those acts do not involve conduct of a sexual nature - Sex-based harassment by those of same sex - discriminatory sex stereotyping (e.g., harassment of gay and lesbian students)© Margolis Healy & Associates, LLC 23
    • 24. Summary of Institutional Obligations • If institution knows or reasonably should know about sexual harassment that creates a hostile environment, Title IX requires immediate action to eliminate the harassment, prevent its recurrence, and address its effects. • Must designate Title IX Coordinator, publish notice of nondiscrimination, and adopt and publish grievance procedures.© Margolis Healy & Associates, LLC 24
    • 25. Summary of Institutional Obligations • Train employees to report harassment to appropriate institutional officials • Train employees with authority to address harassment, or who are likely to witness it or receive reports, how to respond properly - OCR examples: “teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.”© Margolis Healy & Associates, LLC 25
    • 26. Summary of Institutional Obligations • Investigate complaints adequately, reliably and impartially • Provide grievance procedures that promote prompt, equitable resolution of complaints • Undertake education and prevention efforts© Margolis Healy & Associates, LLC 26
    • 27. QUESTIONS?© Margolis Healy & Associates, LLC
    • 28. Understanding Sexual & Gender Violence on Campus Dr. Gary J. Margolis
    • 29. Our conversation today... • Sexual Assault • Stalking • Intimate Partner Violence • Reluctance to Report • Trauma • Impact on Student Development© Margolis Healy & Associates, LLC
    • 30. Sexual Assault In a survey of more than 6000 students at 32 colleges and universities in the U.S., it was found that: • One in four women had been victims of rape or attempted rape • Only 27% of the women considered themselves to be victims of rape, although their assaults met the legal definition of rape • 84% of the rape victims knew their attacker© Margolis Healy & Associates, LLC
    • 31. Sexual Assault • 57% of the rapes happened on dates • 42% told no one of the assault, and only 5% reported to the police Warshaw, Robin. I Never Called it Rape: The Ms. Report on Recognizing and Surviving Date and Acquaintance Rape. New York: Harper Perennial, 1994.© Margolis Healy & Associates, LLC
    • 32. What about the guys? • More than 8% of male college students committed acts that met the legal definition of rape or sexual assault (Warshaw, 1988)(Lisak) • 88% of men whose actions came under the legal definition of rape were adamant that their behavior did not constitute rape. (Warshaw, 1988) • 13% of Naval recruits admitted perpetrating rape or attempted rape prior to or during 1st year of military service. (McWhorter, Stander, Merrill, 2009)© Margolis Healy & Associates, LLC
    • 33. Sexual Assault At least 20% of American men report having perpetrated sexual assault and 5 percent report having committed rape (Crowell and Burgess 1996; Spitzberg 1999; Tjaden and Thoennes 2000)© Margolis Healy & Associates, LLC
    • 34. Sexual Assault • Alcohol and other substances are used intentionally by men who commit rape (alcohol is the “weapon of choice”) • 55% of men who admitted to committing rape and 53% of women who experienced rape were drinking at the time • If both parties are drinking, society often blames the victim and excuses the offender© Margolis Healy & Associates, LLC
    • 35. Barriers to reporting • Confusion; was that rape? • Self blame • Minimization • Fear of not being believed • Fear of the response of others (especially in specialized communities such as LGBTQ) • Fear of offender© Margolis Healy & Associates, LLC
    • 36. Stalking© Margolis Healy & Associates, LLC
    • 37. What is Stalking? • Stalking generally refers to repeated harassing or threatening behavior putting another person in fear • Experiencing repeated, obsessive, and frightening behavior that made the victim afraid or concerned for safety© Margolis Healy & Associates, LLC
    • 38. Stalking is a... Course of Conduct Crime not Incident Based Crime© Margolis Healy & Associates, LLC
    • 39. Research • National Violence Against Women Survey – 1998 (Tjaden & Thoennes) • National Sexual Victimization of College Women Survey – 2000 (Fisher, Cullen & Turner) • Femicide Study – 1999 (McFarlane et al.) • BJS 2009© Margolis Healy & Associates, LLC
    • 40. Relationship to Stalker 80.3% of campus stalking victims knew their stalkers • 42.5% stalked by a current/former boyfriend • 24.5% stalked by a classmate • 10.3% stalked by an acquaintance • 5.6% stalked by a friend • 5.6% stalked by a coworker© Margolis Healy & Associates, LLC
    • 41. Prevalence of Stalking • Estimated 3.4 million people are stalked annually - Stalking Victimization in the United States, BJS (2009) • 1 out of every 12 U.S. Women (8.2 million) and 1 out of every 45 U.S. men (2 million) has been stalked at some point - National Violence Against Women Survey (1998) • 13.1% of college women were stalked during one semester of college - The Sexual Victimization of College Women (2000)© Margolis Healy & Associates, LLC
    • 42. IPV and Stalking • 81% of stalking victims who were stalked by an intimate partner reported that they had also been physically assaulted by that partner. • 31% were also sexually assaulted by that partner NVAW Survey© Margolis Healy & Associates, LLC
    • 43. Gender of Stalking Victims Gender of Stalking Victims 78% F emale 22% Male© Margolis Healy & Associates, LLC
    • 44. Stalkers • 94% of female victims were stalked by men • 60% of male victims were stalked by men • Overall, 87% of stalkers were men© Margolis Healy & Associates, LLC
    • 45. Stalking on Campus • Stalking incidents lasted an average of 60 days • 30% of victims were stalked only off campus • 66% of victims reported being stalked at least 2 – 6 times per week - National Sexual Victimization of College Women Survey (2000)© Margolis Healy & Associates, LLC
    • 46. Relationship Between V & O Relationship Between Victim and Offender Percentage of Cases Spouse/Ex-spouse 38% 13% Co-habiting Partner/Ex-partner 10% 9% Date/Former Date 14% 10% Relative Other Than Spouse 4% 2% Aquaintance 19% 34% Stranger 23% 36% 0% 10% 20% 30% 40% Female victims (N=650) Male victims (N=179)© Margolis Healy & Associates, LLC
    • 47. Stalking Behaviors Stalking Behaviors Percentage of cases 82% Followed, spied on, stood outside home, etc. 72% Made unwanted phone calls 61% 42% 33% Sent/left unwanted letters, items 27% Vandalism 29% 30% Killed or threatened pet 9% 6% 0% 18% 36% 54% 72% 90% Female Victims (N=625) Male Victims (N=168)© Margolis Healy & Associates, LLC
    • 48. Prevalence– Femicide Study • 76% of femicide cases involved at least one episode of stalking within 12 months prior to the murder • 85% of attempted femicide cases involved at least one episode of stalking within 12 months prior to the attempted murder© Margolis Healy & Associates, LLC
    • 49. Physical Abuse & Stalking Physical Abuse and Stalking Percentage of cases 89% 100% 91% 80% 68% 56% 60% 40% 20% 0% Nonabused victims who were stalked Abused victims who were stalked Femicide Victims Attempted Femicide Victims© Margolis Healy & Associates, LLC
    • 50. Stalking Behaviors Stalking Behaviors Percentages of cases 100% 80% 53% 60% 47% 45% 60% 46% 43% 40% 20% 0% Waited outside house/school/work Followed/Spied on Unwanted phone calls Femicide Victims Attempted Femicide Victims© Margolis Healy & Associates, LLC
    • 51. Reporting Stalking Incidents Overall, 83.1% of stalking incidents were NOT reported to police BUT…. 93.4% of victims confided in someone, most often a friend, that they were being stalked© Margolis Healy & Associates, LLC
    • 52. Stalking Reported to PoliceReported to Law Enforcement Reported to Law Enforcement Campus Police Campus PoliceMunicipal/Local/City Police/911Municipal/Local/City Police/911 County Sheriff County Sheriff State Police State Police Other Other 0% 20% 40% 60% 80% 100% 0% 20% 40% 60% 80% Both On/Off-Campus Stalking © Margolis Healy & Associates, LLC Off-Campus Stalking On-Campus Stalking
    • 53. Reports to Law Enforcement • 54% of femicide victims reported stalking to police before they were killed by their stalkers • 46% of attempted femicide victims reported stalking to police before the attempted murder© Margolis Healy & Associates, LLC
    • 54. Impact on Victims “It’s going to take getting a bullet put in my head before people understand how serious this is.” Statement by Peggy Klinke made one month before she was killed in January 2003© Margolis Healy & Associates, LLC
    • 55. Intimate Partner Violence (IPV)© Margolis Healy & Associates, LLC
    • 56. Intimate Partner Violence Willful intimidation, assault, battery, sexual assault or other abusive behavior perpetrated by one family member, household member, domestic partner, or intimate partner; in many states it includes roommates.© Margolis Healy & Associates, LLC
    • 57. Intimate Partner Violence • Power, control and authority • Domination • Isolation • Verbal and physical abuse© Margolis Healy & Associates, LLC
    • 58. IPV – The Reality 32% of students report dating violence by a previous partner, and 21% report violence by a current partner. C. Sellers and M. Bromley, “Violent Behavior in College Student Dating Relationships,” Journal of Contemporary Justice, (1996).© Margolis Healy & Associates, LLC
    • 59. IPV – The Reality Females ages 16-24 are more vulnerable to intimate partner violence than any other age group– at a rate almost triple the national average. U.S. Department of Justice, Bureau of Justice Statistics, Special Report: Intimate Partner Violence and Age of Victim, 1993-99 (Oct. 2001, rev. 11/28/01). Domestic violence is the leading cause of injury to women outnumbering car accidents, rapes and muggings combined.© Margolis Healy & Associates, LLC
    • 60. Victims’ Reluctance to Report • Sexual violence myths, misperceptions and victim blaming impact the pursuit of justice… • Victims need reassurance that reporting is the right thing to do… • Ensure coordinated, compassionate and professional response for victim/survivor • Promote victim / survivor empowerment© Margolis Healy & Associates, LLC
    • 61. Victims’ Reluctance to Report • Fear of hostile treatment/disbelief by police prevents almost 25% of college rape victims from reporting (Fisher) • Unsupportive or hostile response put victims at a higher risk for post-traumatic stress disorder & life long impacts (Kaukinen &DeMaris 2009) • NIJ estimates annual cost of sexual violence exceeds $127 billion© Margolis Healy & Associates, LLC
    • 62. Victims’ Reluctance to Report • Victims fear re-victimization by University Judicial Process – Criminal Justice System • Don’t identify act as rape, or being a rape victim • Concerns involving offender – social circles • Family reaction • Fear of being labeled, rumors (technology)© Margolis Healy & Associates, LLC
    • 63. Victims’ Reluctance to Report • Alcohol / drug use • Fear of hostile treatment by Police or University • Lack of confidence in reporting process • Lack of consequences for offender© Margolis Healy & Associates, LLC
    • 64. Victims’ Reluctance to Report While there is no “normal” victim response, most experience the following concerns and fears: • “I can’t believe this is happening…” • “It’s my fault… “I’m so ashamed…” • “No one will believe me…” • “How can I trust anyone…” • “I thought I was going to die / be killed…” • “I’m afraid and so overwhelmed…” • “What are people going to think…”© Margolis Healy & Associates, LLC
    • 65. Impact of Trauma Credit to Dr. Sheri Vanino© Margolis Healy & Associates, LLC
    • 66. Victim Doesn’t Fight Back/No Injuries • “Real” Victims Fight • “Real” Victims Scream • “Real” Victims Bleed OH, REALLY. . . . . .© Margolis Healy & Associates, LLC
    • 67. Victim Doesn’t Fight Back/No Injuries • 80% of college rape victims have no physical injuries from the assault • 50% Physically Fought Back • 50% Say No© Margolis Healy & Associates, LLC
    • 68. Why 80% of Victims Don’t Fight Back • Confusion • Fear - 49% of rape victims describe being fearful of death or serious injury during an assault • Self-preservation - 72% of rape victims report using “self-protective” measures, meaning: - 19% Resisted - 11% Warned - 11% Appeased the offender - 31% Other • Too intoxicated to fight back • Dissociation • Fight/Flight/Freeze© Margolis Healy & Associates, LLC
    • 69. Who do you identify with?© Margolis Healy & Associates, LLC
    • 70. The Good News: Prey Have Many Choices • Flight • Freeze • Fight© Margolis Healy & Associates, LLC
    • 71. What Do You See?© Margolis Healy & Associates, LLC
    • 72. How Trauma Influences Victim Response What we experience and how we interpret it Branch? (including our history) determines what part Snake? of our brain will take precedence and react…© Margolis Healy & Associates, LLC
    • 73. Fight, Flight or Freeze Branch Snake! Cognitive and Higher Reactive or Survival Functioning: Functioning are Activated Flight or Fight Normal Brain Stress Chemicals Released Chemistry Bypasses Cognitive and Higher Functioning Assessment & Decision Making Based on Previous Learning If Stress Continues, Additional Chemicals Facilitate Freezing Action Based on Decision Making© Margolis Healy & Associates, LLC; Dr. Sheri Vanino
    • 74. Why Would Freezing Be Important ??© Margolis Healy & Associates, LLC; Dr. Sheri Vanino
    • 75. Freezing Can Lead To • Not fighting back • Not saying no • Dissociation - During the trauma - On the stand - In your office - While attending court© Margolis Healy & Associates, LLC; Dr. Sheri Vanino
    • 76. Impact on Student Development Credit to Dr. Eugene Zdziarski© Margolis Healy & Associates, LLC
    • 77. Maslow’s Hierarchy Psychology Wiki http://psychology.wikia.com/wiki/Maslows_hierarchy_of_needs© Margolis Healy & Associates, LLC
    • 78. Emotional/Psychological Effects of Sexual Violence • Shock/denial • Loss of self-esteem • Irritability/anger • Loss of security/loss of trust in others • Depression • Guilt/shame/embarrassment • Social withdrawal • Impaired memory • Numbing/apathy (detachment, loss of • Loss of appetite caring) • Suicidal ideation (thoughts of • Restricted affect suicide and death) (reduced ability to express emotions) • Substance Abuse • Nightmares/flashbacks • Psychological disorders • Difficulty concentrating © 2008 National Center for Victims of Crime© Margolis Healy & Associates, LLC
    • 79. Impact of Sexual Violence • Loss of self-esteem • Social withdrawal • Loss of trust in others • Loss of security Psychology Wiki http://psychology.wikia.com/wiki/Maslows_hierarchy_of_needs© Margolis Healy & Associates, LLC
    • 80. Student Outcomes • Academic Performance Declines • Lack of Engagement • Social Isolation • Suicide Risk • Withdrawal from Institution© Margolis Healy & Associates, LLC
    • 81. Summary • Sexual Assault • Stalking • Intimate Partner Violence • Reluctance to Report • Trauma • Impact on Student Development© Margolis Healy & Associates, LLC
    • 82. Duties & Responsibilities of a Title IX Coordinator Jeffrey J. Nolan, Esq.
    • 83. © Margolis Healy & Associates, LLC
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    • 94. QUESTIONS?© Margolis Healy & Associates, LLC
    • 95. Defining Roles &Confronting Conflict Steven J. Healy Jeffrey J. Nolan, Esq.
    • 96. Agenda • Campuses have unique challenges due to climate, environment and culture • We can overcome these challenges • Collaboration, communication, coordination and capitalization are keys© Margolis Healy & Associates, LLC 96
    • 97. Challenge # 1 Many “touch points” are both positive and potentially negative© Margolis Healy & Associates, LLC 97
    • 98. Many Touch Points • Campus public safety (sworn and non- sworn) • Student Affairs (Dean, Residence Life, RAs) • Health Services • Counseling Center • Women’s Center • Advocates • Off-campus resources© Margolis Healy & Associates, LLC 98
    • 99. Many Touch Points Challenges • Poor collaboration leads to cross purposes and poor support for survivors • Different institutional policies regarding reporting complicates the process© Margolis Healy & Associates, LLC 99
    • 100. Many Touch Points Successes • Strong collaboration (before incidents are reported) ensures survivor’s interest remain top priority • Access to advocates; advocates embedded in PD; appropriate protocols© Margolis Healy & Associates, LLC 100
    • 101. Challenge #2 Coordination with local authorities is often a source of tension© Margolis Healy & Associates, LLC 101
    • 102. Coordination w/local authorities • Campus public safety • Local police • Student Affairs • Prosecution • Advocates© Margolis Healy & Associates, LLC 102
    • 103. Coordination w/local authorities • What are community expectations? There are actually several communities… • Do local police handle all cases? Are there appropriate protocols in place? • Is there a county-wide task force? • Does UPD handle, and if so, what about the administrative inquiry/investigation© Margolis Healy & Associates, LLC 103
    • 104. Coordination w/local authorities Challenges • Law enforcement perspective: - Are UPD officers trained to appropriate level - Are they representing survivor, institution, or “the people?” • Adjudication perspective: - Deans want to move swiftly (Title IX) - Prosecutors want to build best possible case© Margolis Healy & Associates, LLC 104
    • 105. Coordination w/local authorities Challenges • Police investigations are not determinative of whether sexual harassment/violence violates Title IX • Police investigations do not relieve institutions of Title IX duty to resolve sexual violence complaints promptly and equitably • Institutions cannot wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting.© Margolis Healy & Associates, LLC 105
    • 106. Coordination w/local authorities Successes • Pre-coordination • Close coordination when incident reported© Margolis Healy & Associates, LLC 106
    • 107. Coordination w/local authorities • Develop respectful working relationship (and good contacts) with local law enforcement. • Keep in touch with law enforcement to determine the status of their work and to let them know the status of yours • Ensure that law enforcement understands that institution has obligation to protect campus community while law enforcement fact- gathering is in progress© Margolis Healy & Associates, LLC 107
    • 108. Coordination w/local authorities • If criminal charges are pending and you are a public institution, respondent has a due process right to have an attorney present at the hearing - Attorney serves as respondent’s advisor, not active participant (unless your hearing procedure allows for that) - Title IX demands parity for complainant and respondent, so complainant would be entitled to have an attorney present as well • Dealing with requests to hold the institution’s case in abeyance© Margolis Healy & Associates, LLC 108
    • 109. Coordination w/local authorities • “Double jeopardy” argument – don’t fall for it • Did the prosecutor decline to prosecute? Keep moving forward… - Note: If the criminal case is over, consider allowing respondent (and complainant) an attorney if an appeal is pending© Margolis Healy & Associates, LLC 109
    • 110. Challenge #3 Access to on & off campus support services© Margolis Healy & Associates, LLC 110
    • 111. Access to support services • Not all campuses have victim support services. Survivors rely on community resources… • Local providers may not understand campus processes or culture. Could lead to poor advice or worst, further danger for the survivor… • Reverse also possible© Margolis Healy & Associates, LLC 111
    • 112. Access to support services Successes • On and off campus advocates work closely together - Some jurisdictions, advocates serve both community and campus (capitalization) • Close coordination and communication - Local support services understand campus culture and processes - Regular meetings to exercise a coordinated response© Margolis Healy & Associates, LLC 112
    • 113. Challenge #4 Lack of understanding/knowledge about gender/sex crimes© Margolis Healy & Associates, LLC 113
    • 114. Lack of understanding & knowledge • Interconnected nature of gender and sexual violence crimes - Stalking, sexual assault, intimate partner violence • Failure to acknowledge the prevalence of relationship violence© Margolis Healy & Associates, LLC 114
    • 115. Lack of understanding & knowledge Successes • Fully informed campus constituents (e.g., public safety, student affairs, legal, counseling center, health center, etc.) • VAWA Grants require joint training • Presence of viable crime prevention and security awareness programs - Men Against Rape programs - Bystander Intervention (UNH)© Margolis Healy & Associates, LLC
    • 116. Opportunities for Success • Collaboration • Communication • Coordination • Capitalization© Margolis Healy & Associates, LLC
    • 117. QUESTIONS?© Margolis Healy & Associates, LLC
    • 118. Complaint Intake, Confidentiality &Conducting Investigations Dr. Gary J. Margolis Jeffrey J. Nolan, Esq.
    • 119. Experience has taught us… • A Multi-disciplinary trained response is critical for the effective response to sexual violence • Training and exercise with the policy and those responsible for response, investigation and findings, is essential • First responders, investigators, advocates, SANE, pr osecutors and institutional administrators need advanced training to handle reports of sexual violence© Margolis Healy & Associates, LLC
    • 120. Complainant’s First Impression • Complainants need reassurance that reporting the act of sexual violence is the right thing to do • What message is the institution sending about sexual violence awareness & prevention? • Complainants will be evaluating your first response to determine if you are capable of a compassionate, coordinated and professional response© Margolis Healy & Associates, LLC
    • 121. Receiving Complaints Employees likely to receive complaints initially (e.g., medical, counseling, public safety, coaches, residence life, student affairs, etc.) must: • Be trained to recognize reports of sexual harassment and sexual violence • Know where on campus (and off-campus) to direct complainants for further support, procedures, etc. • Understand limits on requests for confidentiality • Understand what “not to say” in intake discussion© Margolis Healy & Associates, LLC
    • 122. Receiving Complaints, cont. At all intake levels, complainants should be told: • Title IX prohibits retaliation • Institution will take steps to prevent retaliation • Institution will also take strong responsive action if retaliation occurs • Complainant has right to file criminal complaint, before, during or after any institutional Title IX investigation© Margolis Healy & Associates, LLC
    • 123. Receiving Complaints, cont. Once complainant is in touch with appropriate campus office(s), assistance for complainant should be coordinated, e.g.: • Medical • Counseling • Changes in academic, residential arrangements • Connection with advocacy groups (e.g., for support and assistance institution cannot provide, such as obtaining a restraining order) • Interim relief from recent/pending discipline? • Other appropriate available resources© Margolis Healy & Associates, LLC
    • 124. Receiving Complaints, cont. • Don’t require a written complaint – verbal is sufficient (but written is preferable) • Should investigate complaints received from third parties (e.g., parents, friends, etc.)© Margolis Healy & Associates, LLC
    • 125. Receiving Complaints, cont. • If have separate procedures for complaints against students, faculty, staff and/or visitors, consider developing flow chart that shows where to bring complaints & how procedures interrelate • Consider developing short document (one for complainant, one for respondent) summarizing most relevant portions of procedures & provide to parties along with procedures© Margolis Healy & Associates, LLC
    • 126. Interim Measures Consider whether interim measures are appropriate immediately upon receiving complaint Examples include: • Separating the parties (changing academic schedules, housing) • Instructing the respondent not to have contact with the complainant or to go to areas where the complainant is expected to be present • Interim suspension: Justified if the respondent’s remaining part of the community appears reasonably to pose a risk of danger (e.g., stalking, further violence, retaliation); At public institutions, offer a pre-suspension hearing© Margolis Healy & Associates, LLC
    • 127. Confidentiality Issues (Per OCR) “If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation.” “If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the school should inform the complainant that its ability to respond may be limited.” April 4, 2011 Dear ColleagueLetter© Margolis Healy & Associates, LLC
    • 128. Confidentiality Issues (Per OCR) “In some cases, such as those where the school is required to report the incident to local law enforcement or other officials, the school may not be able to maintain the complainant’s confidentiality.” “The school should inform the complainant if it cannot ensure confidentiality.” “Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence.” (e.g.: education and prevention programs)© Margolis Healy & Associates, LLC
    • 129. Requests for Confidentiality - Suggested Solutions • When the student comes in, be clear up front that if you know, you may have to act • Be comforting, let student know you want to help, but respect him/her and want him/her to retain control over what happens and when© Margolis Healy & Associates, LLC
    • 130. Requests for Confidentiality - Suggested Solutions (IF No Current/Future Threat) Determine why complainant is reluctant • That others will know? Discuss the level of confidentiality you can offer • Retaliation by Respondent or others? Discuss your institutional response to retaliation • That a criminal investigation will ensue? Discuss complainant’s options regarding involvement in a criminal process (be careful not to make statements that dissuade) Emphasize that the request for confidentiality may limit the institution’s ability to respond© Margolis Healy & Associates, LLC
    • 131. Requests for Confidentiality – Suggested Solutions (IF No Current/Future Threat) • Let student know about campus resources that can offer a confidential “listening ear,” - offer to walk there with the student or have staff come over to your office to see the student • Be clear that you care, the institution cares and when student is ready for the institution to act, to come back to talk with you© Margolis Healy & Associates, LLC
    • 132. Requests for Confidentiality – Suggested Solutions (IF No Current/Future Threat) • Make sure your confidential campus resources are all knowledgeable about your policies and procedures so they can be of assistance to the student when/if they decide to come forward • Be certain your confidential resources are trained re Title IX, and support institutional processes© Margolis Healy & Associates, LLC
    • 133. Confidentiality Issues for Confidential Resources • Be cognizant of any applicable state law re need or ability to breach privilege due to risk of imminent harm • Understand institutional processes and support student access where appropriate • Support student access to law enforcement and other resources where appropriate • Document all communications re whether to pursue institutional and outside processes© Margolis Healy & Associates, LLC
    • 134. Requests for Confidentiality - Suggested Solutions (IF No Current/Future Threat) • Give the student a copy of the applicable policy, procedures and your card • Document any communications re not investigating: - this must be done carefully to avoid the appearance of sweeping under the rug© Margolis Healy & Associates, LLC
    • 135. Confidentiality Issues (Per OCR) Weighing Current/Future Threats If complainant continues to insist on complete confidentiality, institution “should evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students.” Institution may weigh confidentiality request against: • seriousness of the alleged harassment; • complainant’s age; • whether there have been other harassment complaints about the same individual; and • the alleged harasser’s potential right to review documents re allegations if contained in a FERPA “education record”© Margolis Healy & Associates, LLC
    • 136. Requests for Confidentiality - Suggested Solutions (If Current/Future Threat Present) If need to investigate without complainant’s cooperation: • Rely on other witnesses? • Look to any other complaints involving this respondent? • Consider whether you can proceed fairly in some fashion without complainant’s cooperation • There will be significant constraints if complainant insists on confidentiality and there are no witnesses, etc., but always focus on what you can do • Increased training efforts would be one possible/partial response© Margolis Healy & Associates, LLC
    • 137. Preparing to Investigate • Hire knowledgeable and experienced investigators, or develop them from existing staff • Ensure investigators understand their role as a neutral party, not advocates • Ensure investigators have regular contact with the Title IX Coordinator© Margolis Healy & Associates, LLC
    • 138. Preparing to Investigate • Impartial investigator - No bias or conflict of interest - Consider giving the parties an opportunity to object to the investigator - Use a different investigator if you feel there is a possible or actual conflict - Per OCR, should not be Title IX Coordinator or college/university attorney, which could present a conflict of interest - Per OCR, should have adequate training or knowledge regarding sexual violence - Per OCR, do not rely on police or insurance investigations. The institution needs to conduct its own review© Margolis Healy & Associates, LLC
    • 139. Effective Investigations Tools for Effective Investigations© Margolis Healy & Associates, LLC
    • 140. Effective Investigations I. Recognize impact of trauma on investigations • There is no “normal” victim response • Most complainants/victims/survivors do not physically resist • Most complainants/victims/survivors who report do so after some delay • Most complainants/victims/survivors have difficulty remembering all the details or sequence of the sexual assault • Complainants/victims/survivors experience trauma reactions on an ongoing basis after the assault • We can use expert witnesses (through training) to explain impact of trauma© Margolis Healy & Associates, LLC
    • 141. Effective Investigations II. Understand Reluctance to Report • Complainants/victims/survivors first impression matters… • Build rapport/trust, reassure… • Work with and maintain relationships with advocates • The recipe for a bad investigation is to form a hypothesis and try to prove it (my “gut” tells me…) • The strategy for a good investigation is to examine all the evidence and let it take you to the truth • Approach a case believing that “something” occurred, victims are sensitive to this© Margolis Healy & Associates, LLC
    • 142. Effective Investigations III. Corroboration of details is essential • Physical evidence: exam, photos, digital forensics/social media/hidden recordings, etc • Witness accounts from before and after assault • Outcry witnesses (person who first hears an allegation) • Stalking or abuse behavior • Documentation of sensory and peripheral details from the victim’s perspective - What did “no” look like? What did fear feel like? • Follow up to see the effects of ongoing trauma in victim’s life© Margolis Healy & Associates, LLC
    • 143. Effective Investigations IV. Focus on Respondent’s behavior, not Complainant’s • Investigate pre and post assault behavior • “He said, she said” becomes “He said, they said” • Why did s/he choose/target the complainant/victim/survivor? • How did s/he manipulate the environment and circumstances to get the victim into a position of vulnerability? - Role of alcohol or drugs - Chosen location for the assault - Grooming behavior - Contrived circumstances© Margolis Healy & Associates, LLC
    • 144. Effective Investigations V. Gather information about the Respondent • History/background • Social circles for other complainants and interrelated crimes • Social media, pre and post assault messages & calls • Develop interview strategy (tie in offender behavior, background, sexual violence awareness prevention)© Margolis Healy & Associates, LLC
    • 145. Effective Investigations VI. Thorough Documentation • Goal of investigation is to be objective and thorough • While every case is different, investigations must be consistent and thorough (Policy) • Detailed case documentation/report writing • Supervisory review of all cases • Multi-disciplinary case audits, after action review • Seek expert guidance/testimony when uncertain • Pursue Justice & Fairness…© Margolis Healy & Associates, LLC
    • 146. Behind the Scenes • Ensure interim measures are effective • Keep relevant administrators (as determined by the investigator) apprised of investigation progress • Consult with Title IX Coordinator and Legal Counsel • Consult with media relations, as appropriate© Margolis Healy & Associates, LLC
    • 147. QUESTIONS?© Margolis Healy & Associates, LLC
    • 148. Conducting Hearings, Respecting Rights Steven J. Healy Jeffrey J. Nolan, Esq.
    • 149. Sources of Rights • Contractual/student handbook rights (rights granted by your institution) • Constitutional Due Process (public institutions only) • Rights granted by state constitution (publics) • Rights granted by federal or state law (e.g., Title IX, Clery Act, FERPA, state nondiscrimination statutes)© Margolis Healy & Associates, LLC
    • 150. Student handbook/contract rights • Courts routinely find student handbook procedures to be enforceable as contracts • Concept applies to private and public institutions • Since institutions wrote and can change procedures, courts: - apply them strictly as written - construe any ambiguities in favor of students© Margolis Healy & Associates, LLC
    • 151. What is Constitutional Due Process? • 14th Amendment • Government cannot deprive you of a liberty or property interest without “due process” • No right to go to college, but once attending, the right to remain a student is “an interest of extremely great value” • Two types: procedural (what process is due) and substantive (action won’t be arbitrary or capricious)© Margolis Healy & Associates, LLC
    • 152. What Constitutional Process is Due in a Student Disciplinary Hearing? Balance between • The (responding) student’s interest • The school’s interest, including the burden of additional procedural requirements • The risk of erroneous deprivation versus the value of additional proceedings© Margolis Healy & Associates, LLC
    • 153. Minimum Due Process Required When Student Could Face Expulsion • Notice (statement of specific charge) • An opportunity to defend oneself, including providing own witnesses and other evidence© Margolis Healy & Associates, LLC
    • 154. Minimum Due Process Required When Student Could Face Expulsion • An impartial decision maker • A report of the findings • Double check that more isn’t offered by state constitution/law© Margolis Healy & Associates, LLC
    • 155. Due Process and Title IX • Per OCR: “Public . . . Schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.” • Should focus on rights of both complainant and respondent • What one party gets, so does the other© Margolis Healy & Associates, LLC
    • 156. “Prompt, Equitable” Procedures under Title IX • In general, institutions must provide: − Notice of sexual harassment/violence grievance procedures and where complaints may be filed − Adequate, reliable and impartial review, including opportunity of complainant and respondent to present witnesses and other evidence − Designated and reasonably prompt time frames − Notice of the outcome of the hearing − Assurance that institution will take steps to prevent recurrence of harassment/violence and will correct its discriminatory effects© Margolis Healy & Associates, LLC
    • 157. Investigation/Grievance Procedures • Overall structure of procedures not mandated by OCR – Choices could include, e.g.: − Stand-alone sexual harassment/violence investigation or investigation/hearing procedures − Student disciplinary hearing procedures that apply special Title IX-compliant features only in sexual harassment/violence cases − Student disciplinary hearing procedures that apply Title IX-compliant features in all cases© Margolis Healy & Associates, LLC
    • 158. Title IX Minimum Procedural Requirements • In investigations and hearings, parties must have equal opportunity to present relevant witnesses and other evidence • Both parties must have equal opportunity to have support people and counsel present (if any counsel are permitted)© Margolis Healy & Associates, LLC
    • 159. Title IX Minimum Procedural Requirements • Both parties must be afforded similar and timely access to any information that will be used at a hearing, similar pre-hearing meetings, ability to present character witnesses, review statements, etc. • OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing© Margolis Healy & Associates, LLC
    • 160. Title IX Minimum Procedural Requirements • Use the appropriate standard of review (preponderance of the evidence) • Per OCR, no separate procedures for student athletes • OCR recommends policy statement to effect that: - Institution’s primary concern is student safety - Other rules violations will be addressed separately from a sexual violence allegation, and - Drug/alcohol use never makes complainant at fault for sexual violence© Margolis Healy & Associates, LLC
    • 161. Title IX Minimum Procedural Requirements • Timeliness: • Time frames must be specified for time in which: - Major events in investigations/hearings will occur - School will conduct full investigation of complaint (OCR expects 60 days max) - Parties will be notified regarding outcome of complaint - Parties may file an appeal, if applicable© Margolis Healy & Associates, LLC
    • 162. Additional Procedure-Related Requirements • All persons involved in implementing grievance procedures (e.g., Title IX coordinators, investigators, and adjudicators) must have training or experience in handling complaints of sexual harassment and sexual violence, and in the grievance procedures. • Training also should include applicable confidentiality requirements. • In sexual violence cases, the fact-finder and decision- maker also should have adequate training or knowledge regarding sexual violence.© Margolis Healy & Associates, LLC
    • 163. Informal Resolution • OCR states that this is never appropriate for cases involving sexual violence • OCR states that it may be used for other forms of sexual harassment, provided it’s voluntary and the complainant can request that the informal process end and a formal process begin at any time. A neutral third party should be present (not just complainant and respondent). • Due process would demand the same for respondent, that respondent could request a formal process at any time as well (and presumably OCR’s statements about parity for the parties would demand the same)© Margolis Healy & Associates, LLC
    • 164. Informal Resolution, cont. • The institution should reserve the right to end mediation and move to the formal process as it determines appropriate • Regardless of what the parties may agree to, the institution should be certain that the resolution meets its needs to ensure the behavior is not repeated toward complainant or others© Margolis Healy & Associates, LLC
    • 165. At the Hearing • Use neutral terminology (e.g., complainant, not survivor or victim) • Impartial fact finder/decision-maker – No malice, no bias, no conflict of interest – Consider giving the parties an opportunity to object to the decision-maker on the basis of lack of impartiality – No constraints on who may be decision- maker, but ensure you can act throughout the year© Margolis Healy & Associates, LLC
    • 166. At the Hearing, cont. • Impartial fact finder/decision-maker – Consider the value of having a Title IX expert as your decision-maker, versus a panel of members of the University community – Per OCR, should not be Title IX Coordinator or university attorney, which could present a conflict of interest – Per OCR, fact finder/decision-maker should have adequate training or knowledge regarding sexual violence© Margolis Healy & Associates, LLC
    • 167. At the Hearing, cont. • Open or closed hearing? – Suggest closed, even if open for other matters – Never let this decision rest with respondent (which doesn’t meet Title IX parity standards anyway) • Physical layout – If complainant and respondent will be in the same room, allow for physical separation – Consider visual separation, such as a screen • Timing – It will be an emotional situation for both parties. Be certain to allow time for breaks, and take them as scheduled (and as appropriate when requested)© Margolis Healy & Associates, LLC
    • 168. At the Hearing, cont. • Per OCR, must maintain documentation of hearing (written findings of fact, transcripts or audio recordings) • Support persons – Consider allowing in cases involving sexual violence, even if not allowed for other matters • Evidence – Do not allow information regarding extraneous matters, such as past sexual history, sexual reputation, etc. – If forensic evidence is offered, have an impartial trained forensic examiner available to interpret the information© Margolis Healy & Associates, LLC
    • 169. At the Hearing, cont. • Testimony – Consider allowing complainant to testify outside of the presence of respondent, but in a matter that still allows respondent to hear complainant, such as via telephone or behind a screen • Cross-Examination – OCR suggests no direct cross-examination – Have parties submit questions to the hearing officer/panel, which determines which questions to ask (e.g., removing questions about past sexual history, etc.) • Check state law for any additional requirements© Margolis Healy & Associates, LLC
    • 170. After the Hearing • Findings/decision based only on the evidence presented • Remind both parties of the institution’s prohibition on retaliation (direct or indirect) and how to report any suspected retaliation© Margolis Healy & Associates, LLC
    • 171. After the Hearing, cont. • If respondent is found to have violated the institution’s policy by engaging in sexual violence, sanctions must be aimed at eliminating the hostile environment, preventing its recurrence and addressing its effects – Impact on the complainant should be minimized – Consider consulting with Title IX coordinator regarding appropriate sanctions and to ensure consistency – Consider how to address the effects of the harassing behavior on complainant (see p. 16 of 2011 DCL for suggestions from OCR) – Consider whether broader actions, such as policy revisions or campus-wide education, are appropriate© Margolis Healy & Associates, LLC
    • 172. After the Hearing, cont. • Notify complainant and respondent in writing of the outcome and the sanctions imposed – Notification of sanctions is required under the Clery Act and permitted under FERPA when the matter involves sexual violence (more detail on this is provided elsewhere in this curriculum) – In cases that involve sexual harassment, but not sexual violence, the complainant can only be informed of those sanctions directly related to the complainant, such as an instruction to the respondent not to have any contact with complainant© Margolis Healy & Associates, LLC
    • 173. After the Hearing, cont. • Appeals – Not required by Title IX or Due Process – If available, must be available to both parties – Usual bases: • Newly acquired evidence • Prejudicial error • Abuse of discretion (decision was arbitrary and capricious)© Margolis Healy & Associates, LLC
    • 174. Civil Case Examples • Cases brought by complainants • Cases brought by respondents • Common pitfalls, themes and lessons learned© Margolis Healy & Associates, LLC
    • 175. QUESTIONS?© Margolis Healy & Associates, LLC
    • 176. Navigating theLegislative Minefield Steven J. Healy Jeffrey J. Nolan, Esq.
    • 177. Agenda • Introduction • Legislative Review • The Intersections • Avoiding the Minefields© Margolis Healy & Associates, LLC 177
    • 178. Where are the Mines? • Title IX is not the only Federal law that imposes obligations re: sexual violence • Clery Act directly imposes requirements for response to SA - There are also indirect implications • FERPA may also impact your actions • Campus SaVE Act on the horizon© Margolis Healy & Associates, LLC 178
    • 179. Clery Act Basic Requirements • Policy disclosure – provide accurate statements of current security policies and practices • Records collection and retention – maintain certain records and request records from local law enforcement agencies • Information dissemination – provide campus community with information and disseminate that information in several ways© Margolis Healy & Associates, LLC 179
    • 180. Direct Implications • Definitions of Sex Offenses (forcible & non- forcible) • Campus Sexual Assault Victims Bill of Rights: - Sexual offense awareness programs - Procedures following a report of a sexual assault • Campus Sex Crimes Prevention Act (2000)© Margolis Healy & Associates, LLC 180
    • 181. Definitions of Sex Offenses • Uses the FBI’s National Incident-Based Reporting System (NIBRS) edition of the UCR handbook to define sexual offenses • Implications for Title IX SA Investigations - Institutional policy violations definitions may differ significantly© Margolis Healy & Associates, LLC 181
    • 182. Definitions of Sex Offenses • Sex Offenses – Forcible - Forcible Rape - Forcible Sodomy - Sexual Assault With An Object - Forcible Fondling • Sex Offenses – Non-forcible - Incest - Statutory Rape • Remember – these are CRIME definitions© Margolis Healy & Associates, LLC 182
    • 183. Sex Offense Policy & Procedures• Must have a statement in your ASR about the institution’s sex offense policy, procedures and programs. - “A statement of policy regarding the institution’s campus sexual assault programs to prevent sex offenses, and procedures to follow when a sex offense occurs.”• Similar to the OCR Title IX DCL “Steps to Prevent Sexual Harassment and Sexual Violence and Correct its Discriminatory Effects on the Complainant and Others” and “Remedies and Enforcement”© Margolis Healy & Associates, LLC 183
    • 184. Sex Offense Policy & Procedures• The statement must include: - Educational programs that promote awareness of:  Rape  Acquaintance rape  Other forcible and non-forcible sex offenses• You should interpret this to mean that you SHOULD have such programs© Margolis Healy & Associates, LLC 184
    • 185. Sex Offense Policy & Procedures • When a sex offense occurs - Who to contact - Preserving evidence - Whom to report alleged offense • Option to notify law enforcement - On-campus and local police - Statement that institutional personnel will assist students in notifying authorities© Margolis Healy & Associates, LLC 185
    • 186. Sex Offense Policy & Procedures • Notification of on/off campus services - Counseling and other mental health centers - Rape/Sexual assault crisis centers - On campus advocacy centers • Change academic & living situation - Provide options - Must provide, if reasonably available© Margolis Healy & Associates, LLC 186
    • 187. Sex Offense Policy & Procedures • Campus disciplinary procedures must provide the accuser/accused: - Right to have others present (attorney, advisor, witnesses); - Right to be advised of final results - disclosure to accuser is UNCONDITIONAL; - Sanctions that may be imposed • Prompt and Equitable Requirements of OCR Title IX DCL© Margolis Healy & Associates, LLC 187
    • 188. CSCPA of 2000 • Simply required to inform • Not required to disseminate • Disclosure must be made in the Annual Security Report© Margolis Healy & Associates, LLC 188
    • 189. Indirect Implications • Understanding Campus Security Authorities - Campus police/security department - Individuals responsible for security - Access monitor - Resident assistants - Individual or offices designated to receive crime reports - Officials with significant responsibility for student and campus activities© Margolis Healy & Associates, LLC 189
    • 190. Indirect Implications Campus Security Authority’s Responsibility: “to report allegations made in good faith to the reporting structure established by the institution.” • Significant Title IX implications© Margolis Healy & Associates, LLC 190
    • 191. When is a Crime Considered “Reported?” “A crime is reported when it is brought to the attention of a campus security authority or the local police by a victim, witness, other third party, or even the offender.”• An institution must disclose crime reports regardless of whether any of the individuals involved in either the crime itself, or in the reporting of the crime, are associated with the institution.© Margolis Healy & Associates, LLC 191
    • 192. Timely Warning Notices• An institution must alert the campus community of certain crimes in a manner that is timely and will aid in the prevention of similar crimes. These include all Clery Act crimes that are: - Reported to campus security authorities or local police agencies; and, - Considered by the institution to represent a serious or continuing threat to students and employees.© Margolis Healy & Associates, LLC 192
    • 193. Daily Crime Log • Any institution that has a campus police department or security office must create, maintain and make available a daily crime log. - A crime is entered into the log when it is reported to the campus police or security department.© Margolis Healy & Associates, LLC 193
    • 194. Voluntary, Confidential Reporting • 2 Requirements: - A list of titles of each person or organization to whom students and employees should report criminal offenses for the purpose of making timely warning reports and the annual statistical disclosure.  Statement must also disclose whether the institution has any institutional policies or procedures that allow victims or witnesses to report crimes on a voluntary, confidential basis for inclusion in the annual security report.© Margolis Healy & Associates, LLC
    • 195. Voluntary, Confidential Reporting • Don’t confuse voluntary, confidential reporting with anonymous reporting… - A confidential process allows one to come forth without the institution disclosing his/her identity. - A “Jane or Jim Doe” report • Significant implications for Title IX SA investigations • May also impact whether or not the campus public safety entity is able to participate in the investigation© Margolis Healy & Associates, LLC 195
    • 196. Voluntary, Confidential Reporting • Significant implications for Title IX SA investigations - Title IX requires institutions to “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects” • May also impact whether or not the campus public safety entity is able to participate in the investigation© Margolis Healy & Associates, LLC 196
    • 197. Voluntary, Confidential Reporting • Describes procedures, if any, that encourage pastoral counselors and professional counselors, if and when they deem it appropriate, to inform the persons they are counseling of any procedures to report crimes on a voluntary, confidential basis for inclusion in the annual disclosure of crime statistics.© Margolis Healy & Associates, LLC 197
    • 198. Indirect Implications • ASR Current Policies Regarding Campus Law Enforcement: - The working relationship of campus security personnel with state and local law enforcement agencies, including whether the institution has agreements with such agencies, such as written memoranda of understanding, for the investigation of alleged criminal offenses. - Don’t have to include a copy of MOUs, simply state whether they exist.© Margolis Healy & Associates, LLC 198
    • 199. Indirect Implications • Implications for Title IX SA Investigations - Any agreement or Memorandum of Understanding (MOU) with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably.© Margolis Healy & Associates, LLC 199
    • 200. FERPA Fundamentals • Unless an exception applies, FERPA prohibits nonconsensual disclosure of information from education records which is personally identifiable or easily traceable to an individual student - Education record means any information recorded in any way and maintained by institution • Disclosure without consent may be made to school officials with “legitimate educational interest” in receiving information© Margolis Healy & Associates, LLC 200
    • 201. Pertinent FERPA • Law enforcement unit records: Exceptions - Records created by security department/campus police department that were created for a law enforcement purpose - Only applies if in the hands of campus security/campus police • Health or safety emergency: - Institution may disclose records without consent to appropriate parties (including parents) in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals© Margolis Healy & Associates, LLC 201
    • 202. Pertinent FERPA Exceptions • Disclosure to other institutions where the student seeks or intends to enroll - Subject to the requirements of § 99.34 regarding specific or general notice of disclosure to the student • Disclosure to parents of dependent students • Disclosure pursuant to judicial order or lawfully issued subpoena • Student treatment records© Margolis Healy & Associates, LLC 202
    • 203. Pertinent FERPA Exceptions • Disclosure to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense - May only include the final results of the disciplinary proceeding conducted by the institution with respect to that alleged crime or offense. - May disclose the final results of the disciplinary proceeding, regardless of whether the institution concludes a violation was committed© Margolis Healy & Associates, LLC 203
    • 204. Pertinent FERPA Exceptions • Disclosure (to anyone, not just the victim) of the final results of a disciplinary proceeding in which the student has been found responsible for violating institution’s rules in connection with a crime of violence or non- forcible sex offense - May not disclose the name of any other student, including a victim or witness • Under these exceptions, sexual assault (including where victim is incapable of giving consent) is “forcible sex offense” and a crime of violence - Sexual harassment is not crime of violence© Margolis Healy & Associates, LLC 204
    • 205. FERPA/Title IX Interaction • Per OCR, FERPA permits disclosure to victims of sexual assault AND sexual harassment of information about the sanction when the sanction relates directly to harassed student - Why? Because Title IX prevails in this conflict, and harassed student needs to know, e.g., about no- contact orders, suspension of harassing student, transfer to other residence hall, classes, etc. - Cannot disclose other information© Margolis Healy & Associates, LLC 205
    • 206. FERPA/Clery Interaction • Compliance with Clery requirements (e.g., must inform accuser of outcome of proceeding alleging sex offense) does not violate FERPA • Institutions cannot require accusers to adhere to nondisclosure agreements about this information - FERPA re-disclosure limitations do not apply to information that must be disclosed under Clery© Margolis Healy & Associates, LLC 206
    • 207. Practical Tips • Recognize FERPA context • Recognize and utilize all FERPA exceptions • Recognize that Clery takes precedence if any conflict • Seek consent/waivers if necessary • Redact records if necessary to move forward with fair investigation, disciplinary proceedings • Always put safety first© Margolis Healy & Associates, LLC 207
    • 208. HIPAA • HIPAA usually applies, for practical purposes, only where institution engages in certain “covered transactions” (e.g., billing) electronically for health care services • Some institutions apply and adopt more broadly given health care-related operations • Practical approach: if HIPAA is being cited by another institutional official to restrict sharing of information you need, dig deeper to understand whether really applies or not© Margolis Healy & Associates, LLC 208
    • 209. HIPAA • If HIPAA does apply to your institution generally: - HIPAA does not apply to “student treatment records” (e.g., counseling/student health ctr.) - Student treatment records are covered by FERPA and therefore are deemed exempt from HIPAA - So, FERPA principles and exceptions apply • HIPAA exception permits disclosure where necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public • Can disclose to people reasonably able to prevent or lessen threat (including to target)© Margolis Healy & Associates, LLC 209
    • 210. Campus SaVE Act • Will, in general, require institutions to report and do more regarding gender and sexual violence - Adds “domestic & dating violence” (IPV) and stalking incidents to reportable crimes - Expands/clarifies disciplinary procedures - Adds policy statements re: IPV; expands policy statement re: Sexual Assault - Adds education programs for IPV; expands programs for Sexual Assault© Margolis Healy & Associates, LLC 210
    • 211. Conclusion • Significant overlap between Clery, FERPA, and Title IX • You can avoid the minefields - Acknowledge and understand them - Collaboration and coordination across the institution is key© Margolis Healy & Associates, LLC 211
    • 212. QUESTIONS?© Margolis Healy & Associates, LLC
    • 213. Title IX Education, Prevention and Proactive Measures Steven J. Healy
    • 214. Agenda • Introduction • How the DCL addresses “proactive measures” • Education & Training • Preventive Education Programs© Margolis Healy & Associates, LLC 214
    • 215. Introduction “This letter supplements the 2001 Guidance…(and) concludes by discussing the proactive efforts schools can take to prevent sexual harassment and violence, and by providing examples of remedies that schools and OCR may use to end such conduct, prevent its recurrence, and address its effects.” (Page 2, DCL)© Margolis Healy & Associates, LLC 215
    • 216. Introduction “Combined with education and training programs, these measures can help ensure that all students and employees recognize the nature of sexual harassment and violence, and understand that the school will not tolerate such conduct…Training for administrators, teachers, staff, and students also can help ensure that they understand what types of conduct constitute sexual harassment or violence, can identify warning signals that may need attention, and know how to respond.” (Page 5 – 6, DCL)© Margolis Healy & Associates, LLC 216
    • 217. Specific Requirements/Recommendations• Training for administrators, teachers, staff, and students can help ensure they understand sexual harassment and violence; (Page 6, DCL)• Title IX coordinators must have adequate training; (Page 7, DCL)• Law enforcement unit employees should receive training; (Page 7, DCL)• Those involved in implementing Title IX grievance procedures must have training or experience in handling complaints (Page 12, DCL)© Margolis Healy & Associates, LLC 217
    • 218. Specific Requirements/Recommendations• Recommends that institutions implement preventive education programs (Page 14, DCL)• Make victim resources, including comprehensive victim services available (Page 14, DCL)• Recommends that institutions develop specific sexual violence materials that include policies and resources for students, faculty, coaches, and administrators (Page 15, DCL)© Margolis Healy & Associates, LLC 218
    • 219. Title IX Training• Title IX coordinators should receive training on the following: - What constitutes sexual harassment, including sexual violence; - Institution’s obligations to address allegations and its grievance procedures; - How to conduct Title IX investigations; and, - Link between alcohol and drugs and sexual harassment and violence  Best practices to address the link - See Xavier Resolution Letter© Margolis Healy & Associates, LLC 219
    • 220. Title IX Training• Anyone involved in processing, investigating, or resolving complaints must have training and/or experience: - Institution’s obligations to address allegations; - What constitutes sexual harassment, including sexual violence; - The institution’s grievance procedures; - How to conduct Title IX investigations; and, - Link between alcohol and drugs and sexual harassment and violence  Best practices to address the link - Should include applicable confidentiality requirements.© Margolis Healy & Associates, LLC 220
    • 221. Title IX Training• In sexual violence cases, fact- finder and decision-maker should have adequate training or knowledge regarding sexual violence. (Page 12, DCL)© Margolis Healy & Associates, LLC 221
    • 222. Title IX Training• Institution’s law enforcement unit and its employees should receive training: - Title IX grievance procedures and any other procedures used for investigating reports of sexual violence. • Should also receive copies of the institution’s Title IX policies.© Margolis Healy & Associates, LLC 222
    • 223. Title IX Training • Employees who regularly interact with students (those likely to witness or receive reports of sexual harassment and violence) including teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors. - How to recognize and appropriately address allegations of sexual harassment or violence© Margolis Healy & Associates, LLC 223
    • 224. Title IX Training • Other employees should know how to recognize sexual harassment or violence, can identify warning signs, and know how to respond. (Page 6, DCL) - This would be general awareness training© Margolis Healy & Associates, LLC 224
    • 225. Preventive Education “OCR recommends that all schools implement preventive education programs and make victim resources, including comprehensive victim services, available.” (Page 14 - 15, DCL)© Margolis Healy & Associates, LLC 225
    • 226. Preventive Education Programs • Include: - What constitutes sexual harassment and sexual violence; - Institution’s policies and disciplinary procedures; - Consequences of violating these policies; - Encouraging students to report incidents of sexual violence to the appropriate school and law enforcement authorities. Probably already do this, but not specifically in a Title IX context© Margolis Healy & Associates, LLC 226
    • 227. Special Note About Disciplinary Procedures Examine your disciplinary policies to see if they potentially have a chilling effect on sexual violence reporting. “For example, OCR recommends that schools inform students that the schools’ primary concern is student safety, that any other rules violations will be addressed separately from the sexual violence allegation, and that use of alcohol or drugs never makes the victim at fault for sexual violence.” (Page 15, DCL) jjn© Margolis Healy & Associates, LLC 227
    • 228. Sexual Violence Materials • Develop specific materials on sexual violence that include the schools’ policies, rules, and resources for students, faculty, coaches, and administrators. • Include this information in employee handbook and any handbooks that student athletes and members of student activity groups receive. (Page 15, DCL)© Margolis Healy & Associates, LLC 228
    • 229. Sexual Violence Materials • Materials should include: - Where and to whom students should go if they are victims of sexual violence. - What to do if they learn of an incident of sexual violence. - Contact information for counseling and victim services on and off campus - How to file a complaint - How to contact the institution’s Title IX coordinator© Margolis Healy & Associates, LLC 229
    • 230. Sexual Violence Materials • Additional Note: Regularly assess student activities to ensure that practices and behavior of students do not violate the schools’ policies against sexual harassment and sexual violence. (Clubs, Greek organizations, etc.)© Margolis Healy & Associates, LLC 230
    • 231. Policies and • Possible remedies: Procedures - Creating a committee of students and institutional officials to identify strategies for ensuring that students:  Know the institution’s policies regarding sexual discrimination, including sexual harassment and violence;  Recognize sex discrimination, harassment and violence;  Understand how and to who to report incidents;  Know the connection between AOD and sexual harassment or violence;  Feel comfortable that officials will respond appropriately© Margolis Healy & Associates, LLC 231
    • 232. Conclusion • Significant education, training and preventive programming requirements/recommendations in DCL • Don’t lose sight of them • A comprehensive, collaborative approach is the best solution to meeting these requirements© Margolis Healy & Associates, LLC 232
    • 233. Resources• MargolisHealy Gender and Sexual Violence Resource Center http://www.margolis- healy.com/index.php/resources/gender_and_sexual_vi olence/• American College Health Association http://www.acha.org/Topics/violence.cfm• National Sexual Violence Resource Center http://www.nsvrc.org/• Statewide Sexual Assaults Coalitions• RAINN http://RAINN.org• Security on Campus www.securityoncampus.org© Margolis Healy & Associates, LLC 233
    • 234. What to consider… 1. Are my actions and decisions in the best interest of the complainant? 2. Do my actions and decisions respect the rights of the respondent? 3. Are my actions and decisions in the best interest of the university? 4. Am I reasonably complying with federal guidelines as they are understood?© Margolis Healy & Associates, LLC
    • 235. What to consider… 1.Are my actions and decisions in the best interest of the complainant? 2.Do my actions and decisions respect the rights of the respondent? 3.Are my actions and decisions in the best interest of the university? 4.Am I reasonably complying with federal guidelines as they are understood?© Margolis Healy & Associates, LLC
    • 236. Case Study
    • 237. Introduction and Background Introduction The purpose of this Case Study is to give participants an opportunity to explore the various complexities that can arise during a Title IX sexual violence investigation and response and to put into practice the concepts learned during this seminar. It attempts to combine several challenges that institutions face as they undertake an investigation and adjudication of an allegation of sexual or gender violence. Background This Case Study is based upon a compilation of actual events that have occurred on college campuses. It includes allegations of intimate partner violence (IPV), sexual assault and stalking, and involves key campus stakeholders, including university police, student affairs, general counsel, the sexual & gender resource office, local police and prosecutors, and other senior university administrators.© Margolis Healy & Associates, LLC
    • 238. Process Participants will receive “injects” of new information throughout the 1.5-day program. Following an inject, participants will have an opportunity to collaborate with tablemates to discuss the scenario and develop a strategy to respond to the situation, based on the information known at that time. The seminar group as a whole will then have an opportunity to discuss the various approaches taken with seminar leaders providing input based on best and promising practices (and the curriculum). There may be injects that some participants find offensive. Our intent is not to offend; it is, rather, to provide a realistic scenario that will inform our discussion regarding what are, necessarily, difficult issues. Please let one of the facilitators know if you are having a difficult time with the discussion.© Margolis Healy & Associates, LLC
    • 239. Situation April Smith is a first year student at a 4-year private institution located in the Midwest. She is the first in her family to attend college. It is the second semester of her freshman year and she has been in a relationship with Omar Taylor since October of their first year. Both participated in an extended orientation program designed for students in need of academic assistance to help ensure their success in the classroom. April is from a large Midwest city, located 2 hours from the University. She attended a prestigious public high school. Omar Taylor, also a first year student, is from a medium sized city on the east coast and attended a private school He comes from a privileged, upper class family of first generation immigrants. Omar attended the academic assistance program at the request of his family who wanted to ensure a strong foundation for his academic career. April and Omar have a close-knit group of friends with whom they spend most of their social time. Both April and Omar had solid grades during the first semester.© Margolis Healy & Associates, LLC
    • 240. Inject #1 A student who lives in the same residence hall with Omar contacted her RA to report that she’s heard constant cries coming from Omar’s room, which is across the hall from her own. She tells the RA that the cries have been going on for the past 2 hours. It is approximately 9:00 p.m. on a Monday evening. The RA, a junior who has been a resident assistant for the past two years, knocked on Omar’s door and received no response but could hear noise. She contacts the University Police. The RA tells the police dispatcher that a student reported a loud noise coming from a room across the hall from her own. She also tells the dispatcher that the noise has been going on for approximately two hours. The dispatcher sends a university police officer, “Unit 304, respond to Howard Hall, room 204, see Kelsey, the RA, regarding an ongoing noise complaint”© Margolis Healy & Associates, LLC
    • 241. Inject #1Continued Unit 304 is Officer Brad Smith, a three-year veteran of the department. He responds to room 204 where Kelsey shares the information that was reported to her. She does not mention crying, but instead tells Officer Smith that reportedly, there have been loud noises coming from Omar’s room for the past 2 hours. Smith proceeds to Omar’s room, knocks on the door, and announces himself as a university police officer. Omar barely opens the door and asks Officer Smith what he wants. Smith tells Omar of the loud, ongoing noise complaint and asks to know what’s going on. Omar states that he and his girlfriend are having a pillow fight and the noise was probably the two of them laughing and yelling. Smith asks to speak with April, and when Omar stepped back to fully open the door he saw her lying on the bed, under the covers. She giggled at the sight of the officer. Smith asked April if everything was OK, and she nervously replied, “Yes. We were just playing around.” Hearing this, Smith tells Omar and April to keep the noise down and to have a good night. He then tells Kelsey that they were “just playing around,” and leaves. Smith reported to the dispatcher that it was two students playing and then goes back into service.© Margolis Healy & Associates, LLC
    • 242. Inject #2 The next day, at approximately 10:00 a.m., Kelsey sees April leaving Omar’s room on her way to class. She notices that April had a swollen right eye and is visibly upset. She approaches April, asked her if she is OK, and tells her that she had called the campus police the night before because of noises coming from Omar’s room. April asks if they can go to Kelsey’s room. Once there, she tells Kelsey that Omar is very upset with her (April) and that he’d been that way since Saturday night when they went into the city. She said Omar thought she had been flirting with another guy when they were out at a club in the city. She tells Kelsey that Omar beat her since returning to his room early Sunday morning and that he would not let her leave his room. April also said that in between the beatings, Omar was forcing her to have sex with, and perform sex acts on, him. Kelsey was unsure of what to do with this information, but knew that she should contact her Residence Hall Director. She told April to go to her residence hall, stay away from Omar, and that she (Kelsey) would be contacting her RD later that afternoon. Upon explaining the situation to Susan Stevens, the Residence Hall Director, she (Susan) asked Kelsey to complete a report ASAP. Susan then contacted the Dean of Students.© Margolis Healy & Associates, LLC
    • 243. Inject #3 Upon receiving the concerning information, the Associate Dean responsible for student discipline, Susan, and several other associate deans meet to develop a course of action. The Dean chooses to issue a “no-contact” order to Omar restricting his interaction with April. The Dean also directs Susan, the RD, to contact April to interview her regarding the events of the previous few days. The Dean’s Office prepares the no- contact order and contacts University Police to serve it on Omar. An associate dean notified the police supervisor that they needed an officer to accompany them to Omar’s room to serve a no-contact order. The supervisor asked the associate dean to explain the situation. The dean replied that it was a student matter and that all he needed to know was that Omar was to stay away from April. They proceeded to Omar’s room and served the no-contact letter. During the interaction, Omar was visibly agitated and ranted about how silly this situation was and that April was always “trying to start stuff.” At one point, the police supervisor had to tell Omar to calm down. The meeting ended without incident.© Margolis Healy & Associates, LLC
    • 244. Inject #3 Continued The associate dean gave a copy of the no-contact letter to the supervisor. Once back in the office, the supervisor contacted the deputy chief to explain the situation. The supervisor explained that he was concerned that something serious was up and that the Dean’s office wasn’t being forthcoming about the situation. The deputy chief told the supervisor to find April to interview her and said that he would contact the Dean’s office. The Deputy Chief contacted the Dean who told him that this was a FERPA issue and that she couldn’t really talk about the situation. She also said that they were handling the incident and that she just needed the police to keep an eye on Omar and ensure that he stayed away from April. The supervisor, following the Deputy Chief’s instructions, sent one of his investigators and an officer over to April’s room to interview her. April voluntarily participated in the interview. It was obvious to the officers upon seeing April that she had been involved in some type of confrontation.© Margolis Healy & Associates, LLC
    • 245. Inject #3 Continued She had a bruised right eye, scratch marks on her face, and fingerprint marks around her neck. The officer asked if she could take pictures of April’s injuries, and April replied yes. During the interview, April stated that this was all a misunderstanding and that the injuries were the result of a pillow fight and wrestling between she and Omar. She also said that Omar was upset with her now because the campus police came to his room. She said she made up the initial story that she told Kelsey because she was mad at Omar for wanting to end their relationship. The investigator told April that he wasn’t aware of the story she told the RA and asked her to recount it. April replied that it wasn’t important because it was all a misunderstanding and that she just wanted to be left alone. She also said that she had told the officer who came to Omar’s room on Monday night that they were just playing.© Margolis Healy & Associates, LLC
    • 246. Inject #3 Continued The investigator inquired about the officer and April said that an officer had come to Omar’s room because they were making noise. The officer asked her if she needed medical attention and April replied no. The investigator then asked April to sign a form stating that she did not want to go further with an investigation. April signed the form. Back at the station, the investigator contacted the Deputy Chief to inform him of the situation. She told the Deputy Chief that there was no case and that April had signed a declaration form. The Deputy Chief told the investigator and the officer to complete a case report.© Margolis Healy & Associates, LLC
    • 247. Inject #4 On Tuesday afternoon, the University Police received a call from a RA in April’s dorm stating that he had just seen Omar entering April’s room and was aware that there was a no-contact order in place. Immediately, the University Police dispatched several units to the dorm to address the situation. Once the officers arrived at the dorm, they went to April’s room, where they found the door slightly ajar. They entered April’s room and found her crying, sitting on her bed. Omar was standing over her, but was not making any aggressive moves. The officers separated the two and interviewed them individually. During the interview with April, April told the officers that she was crying because of the no-contact order and that she wanted to be with Omar. In his interview, Omar told the officers that he had come to the dorm to try to straighten everything out. The officers reminded both of them of the no-contact order and informed them that they would need to contact the Dean to have it removed. The officers transported Omar back to his dorm and then briefed the Deputy Chief of the situation. The Deputy went to the Dean’s Office and spoke with the Associate Dean in charge of discipline.© Margolis Healy & Associates, LLC
    • 248. Inject #4 Continued He explained to the Dean that they had interviewed April and that she had recanted her story about a sexual assault and the fight and that she now says she wanted the no-contact order removed. The Deputy told the Associate Dean that he didn’t want to get his police involved in their screw up and that they needed to figure out what the situation was. He also told the Associate Dean that they were not going to continue to dispatch officers every time someone saw April and Omar together since it was clear that they wanted to be with one another. As a result of this conversation, the Associate Dean met with the Dean to explain what she had just learned from the Deputy. The Dean was livid that the Police had interviewed April especially since she had earlier informed the Deputy that this was a student affairs issue that they were handling. She immediately summoned the Deputy and the Chief to her office to discuss the situation.© Margolis Healy & Associates, LLC
    • 249. Inject #4 Continued During that meeting, the Dean was clear that she felt that the police were outside of their area of responsibility and that they must continue to enforce the no-contact order since it was a University directive. She said that she would contact the Executive Vice President if there was disagreement about enforcing the order. The Chief and Deputy Chief capitulated on this issue and agreed to continue to enforce the order. The Chief explained however that it was in everyone’s best interest to get this case settled as soon as possible. The Chief also told the Dean that anytime they learn of these types of allegations, they had an obligation to investigate them. The Dean stated: “we’ll just have to agree to disagree on this point.” “They’re my students and I decide how we handle situations with them.” The meeting concluded without further conversation.© Margolis Healy & Associates, LLC
    • 250. Inject #5 On Wednesday morning, the Associate Dean met with April to discuss the situation between her and Omar. During the conversation, April stated that her original story was, in fact, true and that the events as she originally recounted them to Kelsey were true. She further recounted that the reasons she changed her story was that she didn’t trust the University Police because they didn’t help her when they came to Omar’s room on Monday night. She also said that she felt threatened during the interview with the Police on Tuesday and didn’t believe they wanted to help her. The Dean asked her if she had received any medical care and April responded no. The Dean escorted April to Health Services to get a medical examination. Once at Health Services, April met with a nurse who informed her that if she wanted a Sexual Assault Medical Forensic Examination she would have to go to the local hospital. April elected to go to the hospital and once there was informed that the hospital would need to contact the local police.© Margolis Healy & Associates, LLC
    • 251. Inject #5 Continued April replied that she was more than happy to talk with the local police because she was afraid of Omar and needed to be protected and didn’t trust the University Police to do so. Following her examination, April went to the local police department and was interviewed by two investigators. Following the investigation, the local police obtained an arrest warrant for Omar and came to campus to arrest him. The local police chief also notified the county prosecutor to complain that the University Police were trying to hide sexual assaults on campus and was not taking action when assaults were reported to them. Once Omar was arrested, the Dean’s Office suspended Omar from campus. They informed him that he would not be able to return to campus until there was a disciplinary hearing. According to University policy, they set the hearing date for 45 days from the day Omar was arrested.© Margolis Healy & Associates, LLC
    • 252. Inject #6 The Dean’s Office began to conduct their investigation for the upcoming hearing regarding the case. Simultaneously, the local police were conducting their investigation. The local police became concerned that the University investigation was beginning to interfere with their investigation, because every time they interviewed a witness, the individual would reply that they had already told the Dean’s Office their story. Students began to refuse to be interviewed by the local police because they felt they were being harassed. Frustrated by the situation, the local police went to a county judge to seek a “cease and desist” letter ordering the University to stop investigating the situation involving April and Omar. The University received the order and immediately halted their investigation. They did, however, uphold their suspension letter against Omar, pending final criminal adjudication. Omar’s family sued the University to force them to allow Omar back to the campus.© Margolis Healy & Associates, LLC
    • 253. Thank You! www.margolishealy.com 866-817-5817 2© Margolis Healy & Associates, LLC 5 3
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