University of North Carolina SystemTitle IX and Campus Security Authority Training Program         February 13-14, 2013
Agenda      • Introductions      • About MHA Housekeeping Issues      • Schedule      • Topical Areas      • Digital Guide...
Faculty            • Steven J. Healy            • Gary J. Margolis, Ed.D.            • Jeffrey J. Nolan, Esq.© Margolis He...
Schedule Day 1   8:30 a.m. – 8:45 a.m.:            Opening & Introduction   8:45 a.m. – 9:45 a.m.:            Setting the ...
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:...
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Setting the Stage:     Overview of Title IXInstitutional Obligations and   Enforcement Context     Jeffrey J. Nolan, Esq.
Agenda       • Statutory, regulatory requirements and OCR         guidance       • OCR investigation/enforcement process  ...
Title IX       Title IX of the Education Amendments of       1972 (Title IX), 20 U.S.C. §§ 1681 et       seq., prohibits d...
Title IX Regulations - 34 C.F.R. Part                                     106       •      § 106.4: Assurance of complianc...
Dep’t of Educ. Office for Civil                                     Rights        • “The mission of the Office for Civil R...
Dep’t of Educ. Office for Civil                                     Rights       • OCR Activities, e.g.:            - Inve...
OCR Enforcement Process      • Theoretically, negative OCR findings can        result in:            - loss of federal fun...
OCR Enforcement Process       • Practically, resolutions are negotiated with recipients,         who take “voluntary remed...
Civil Remedies        • Title IX nondiscrimination obligations may be          enforced in court by individual or class   ...
OCR Title IX Resources        • April 2011 OCR Dear Colleague Letter:              http://www2.ed.gov/about/offices/list/o...
Sexual Harassment                                     Definition       • Unwelcome conduct of a sexual nature            -...
Sexual Violence Definition       • Sexual violence is a form of sexual         harassment prohibited by Title IX.         ...
Scope of Coverage      • Title IX protects students from sexual        harassment in an institution’s education        pro...
Scope of Coverage       • Institutions may have obligation to respond         to student-on-student sexual harassment that...
Scope of Coverage       • Title IX protects third parties from sexual         harassment or violence in an institution’s  ...
Scope of Coverage     • Title IX also prohibits gender-based       harassment, including:           - acts of verbal, nonv...
Summary of Institutional                                     Obligations      • If institution knows or reasonably should ...
Summary of Institutional                                     Obligations     • Train employees to report harassment to    ...
Summary of Institutional                                     Obligations      • Investigate complaints adequately, reliabl...
QUESTIONS?© Margolis Healy & Associates, LLC
Understanding Sexual & Gender Violence on       Campus   Dr. Gary J. Margolis
Our conversation today...             • Sexual Assault             • Stalking             • Intimate Partner Violence     ...
Sexual Assault          In a survey of more than 6000 students at 32 colleges          and universities in the U.S., it wa...
Sexual Assault             • 57% of the rapes happened on dates             • 42% told no one of the assault, and only    ...
What about the guys?             • More than 8% of male college students               committed acts that met the legal d...
Sexual Assault               At least 20% of American men report               having perpetrated sexual assault and 5    ...
Sexual Assault             • Alcohol and other substances are used               intentionally by men who commit rape     ...
Barriers to reporting             • Confusion; was that rape?             • Self blame             • Minimization         ...
Stalking© Margolis Healy & Associates, LLC
What is Stalking?             • Stalking generally refers to repeated                  harassing or threatening behavior  ...
Stalking is a...           Course of Conduct Crime                                         not                    Incident...
Research            • National Violence Against Women                   Survey – 1998 (Tjaden & Thoennes)            • Nat...
Relationship to Stalker            80.3% of campus stalking victims knew            their stalkers            • 42.5% stal...
Prevalence of Stalking          • Estimated 3.4 million people are stalked                 annually                       ...
IPV and Stalking             • 81% of stalking victims who were stalked               by an intimate partner reported that...
Gender of Stalking Victims                                     Gender of Stalking Victims                                 ...
Stalkers             • 94% of female victims were stalked               by men             • 60% of male victims were stal...
Stalking on Campus          •      Stalking incidents lasted an average of                 60 days          •      30% of ...
Relationship Between V & O                              Relationship Between Victim and Offender                          ...
Stalking Behaviors                                                  Stalking Behaviors                                    ...
Prevalence– Femicide Study             • 76% of femicide cases involved at least               one episode of stalking wit...
Physical Abuse & Stalking                                              Physical Abuse and Stalking                        ...
Stalking Behaviors                                                  Stalking Behaviors                                    ...
Reporting Stalking Incidents                Overall, 83.1% of stalking incidents were                         NOT reported...
Stalking Reported to PoliceReported to Law Enforcement Reported to Law Enforcement                         Campus Police  ...
Reports to Law Enforcement             • 54% of femicide victims reported stalking               to police before they wer...
Impact on Victims            “It’s going to take getting a bullet put in            my head before people understand how  ...
Intimate Partner Violence                         (IPV)© Margolis Healy & Associates, LLC
Intimate Partner Violence              Willful              intimidation, assault, battery, sexual              assault or...
Intimate Partner Violence               • Power, control and                 authority               • Domination         ...
IPV – The Reality             32% of students report dating             violence by a previous             partner, and 21...
IPV – The Reality            Females ages 16-24 are more vulnerable to            intimate partner violence than any other...
Victims’ Reluctance to Report  • Sexual violence myths, misperceptions and    victim blaming impact the pursuit of justice...
Victims’ Reluctance to Report • Fear of hostile treatment/disbelief by police   prevents almost 25% of college rape victim...
Victims’ Reluctance to Report   • Victims fear re-victimization by University     Judicial Process – Criminal Justice Syst...
Victims’ Reluctance to Report    • Alcohol / drug use    • Fear of hostile treatment by Police or      University    • Lac...
Victims’ Reluctance to Report      While there is no “normal” victim response, most      experience the following concerns...
Impact of Trauma                                     Credit to Dr. Sheri Vanino© Margolis Healy & Associates, LLC
Victim Doesn’t Fight Back/No Injuries    • “Real” Victims Fight    • “Real” Victims      Scream    • “Real” Victims Bleed ...
Victim Doesn’t Fight Back/No Injuries     • 80% of college rape victims have no physical       injuries from the assault  ...
Why 80% of Victims Don’t Fight Back       • Confusion       • Fear - 49% of rape victims describe being fearful of        ...
Who do you identify with?© Margolis Healy & Associates, LLC
The Good News:    Prey Have Many     Choices     • Flight     • Freeze     • Fight© Margolis Healy & Associates, LLC
What Do You See?© Margolis Healy & Associates, LLC
How Trauma Influences Victim Response       What we experience       and how we interpret it                     Branch?  ...
Fight, Flight or Freeze                     Branch                                  Snake!  Cognitive and Higher          ...
Why Would Freezing Be Important                                     ??© Margolis Healy & Associates, LLC; Dr. Sheri Vanino
Freezing Can Lead To       • Not fighting back       • Not saying no       • Dissociation               - During the traum...
Impact on Student Development                                     Credit to Dr. Eugene Zdziarski© Margolis Healy & Associa...
Maslow’s Hierarchy                                     Psychology Wiki                                     http://psycholo...
Emotional/Psychological Effects of Sexual                                             Violence            •      Shock/den...
Impact of Sexual Violence                                                                          • Loss of self-esteem  ...
Student Outcomes             • Academic Performance Declines             • Lack of Engagement             • Social Isolati...
Summary             • Sexual Assault             • Stalking             • Intimate Partner Violence             • Reluctan...
Duties & Responsibilities           of a  Title IX Coordinator     Jeffrey J. Nolan, Esq.
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
© Margolis Healy & Associates, LLC
QUESTIONS?© Margolis Healy & Associates, LLC
Defining Roles &Confronting Conflict      Steven J. Healy   Jeffrey J. Nolan, Esq.
Agenda         • Campuses have unique challenges due           to climate, environment and culture         • We can overco...
Challenge # 1       Many “touch points” are both       positive and potentially       negative© Margolis Healy & Associate...
Many Touch Points            • Campus public safety (sworn and non-              sworn)            • Student Affairs (Dean...
Many Touch Points         Challenges              • Poor collaboration leads to cross                purposes and poor sup...
Many Touch Points      Successes           • Strong collaboration (before incidents are             reported) ensures surv...
Challenge #2    Coordination with local    authorities is often a source of    tension© Margolis Healy & Associates, LLC  ...
Coordination w/local                                     authorities                • Campus public safety                ...
Coordination w/local                                     authorities      • What are community expectations? There are    ...
Coordination w/local                                       authorities          Challenges                • Law enforcemen...
Coordination w/local                                     authorities       Challenges            • Police investigations a...
Coordination w/local                                     authorities        Successes             • Pre-coordination      ...
Coordination w/local                                     authorities    • Develop respectful working relationship (and    ...
Coordination w/local                              authorities    • If criminal charges are pending and you are a       pub...
Coordination w/local                                     authorities    • “Double jeopardy” argument – don’t fall for it  ...
Challenge #3         Access to on & off campus         support services© Margolis Healy & Associates, LLC                 ...
Access to support services      • Not all campuses have victim support        services. Survivors rely on community       ...
Access to support services      Successes           • On and off campus advocates work closely             together       ...
Challenge #4          Lack of          understanding/knowledge          about gender/sex crimes© Margolis Healy & Associat...
Lack of understanding &                                     knowledge      • Interconnected nature of gender and        se...
Lack of understanding &                                     knowledge         Successes              • Fully informed camp...
Opportunities for                                     Success             • Collaboration             • Communication     ...
QUESTIONS?© Margolis Healy & Associates, LLC
Complaint Intake,   Confidentiality &Conducting Investigations       Dr. Gary J. Margolis      Jeffrey J. Nolan, Esq.
Experience has taught us…    • A Multi-disciplinary trained response is      critical for the effective response to sexual...
Complainant’s First Impression    • Complainants need reassurance that reporting      the act of sexual violence is the ri...
Receiving Complaints   Employees likely to receive complaints initially (e.g.,   medical, counseling, public safety, coach...
Receiving Complaints, cont.   At all intake levels, complainants should be   told:         • Title IX prohibits retaliatio...
Receiving Complaints, cont.       Once complainant is in touch with appropriate campus       office(s), assistance for com...
Receiving Complaints, cont.    • Don’t require a written complaint – verbal is      sufficient (but written is preferable)...
Receiving Complaints, cont.    • If have separate procedures for complaints      against students, faculty, staff and/or v...
Interim Measures   Consider whether interim measures are appropriate   immediately upon receiving complaint   Examples inc...
Confidentiality Issues (Per OCR)   “If the complainant requests confidentiality or asks that   the complaint not be pursue...
Confidentiality Issues (Per OCR)         “In some cases, such as those where the school is         required to report the ...
Requests for Confidentiality - Suggested                                     Solutions    • When the student comes in, be ...
Requests for Confidentiality - Suggested Solutions                                     (IF No Current/Future Threat)    De...
Requests for Confidentiality – Suggested                                     Solutions (IF No Current/Future Threat)    • ...
Requests for Confidentiality – Suggested Solutions                                     (IF No Current/Future Threat)    • ...
Confidentiality Issues for Confidential Resources    • Be cognizant of any applicable state law re      need or ability to...
Requests for Confidentiality - Suggested Solutions                                     (IF No Current/Future Threat)    • ...
Confidentiality Issues (Per OCR)                                     Weighing Current/Future Threats   If complainant cont...
Requests for Confidentiality - Suggested Solutions                                     (If Current/Future Threat Present) ...
Preparing to Investigate    • Hire knowledgeable and experienced      investigators, or develop them from existing      st...
Preparing to Investigate     •      Impartial investigator          -      No bias or conflict of interest          -     ...
Effective Investigations            Tools for Effective Investigations© Margolis Healy & Associates, LLC
Effective Investigations   I. Recognize impact of trauma on investigations    •     There is no “normal” victim response  ...
Effective Investigations    II. Understand Reluctance to Report    •      Complainants/victims/survivors first impression ...
Effective Investigations   III. Corroboration of details is essential    •     Physical evidence: exam, photos, digital fo...
Effective Investigations   IV. Focus on Respondent’s behavior, not Complainant’s    •     Investigate pre and post assault...
Effective Investigations     V. Gather information about the Respondent      •     History/background      •     Social ci...
Effective Investigations    VI. Thorough Documentation     •      Goal of investigation is to be objective and thorough   ...
Behind the Scenes     • Ensure interim measures are effective     • Keep relevant administrators (as determined       by t...
QUESTIONS?© Margolis Healy & Associates, LLC
Conducting Hearings, Respecting Rights      Steven J. Healy   Jeffrey J. Nolan, Esq.
Sources of Rights            • Contractual/student handbook rights              (rights granted by your institution)      ...
Student handbook/contract                                     rights         • Courts routinely find student handbook     ...
What is Constitutional Due                       Process?            • 14th Amendment            • Government cannot depri...
What Constitutional Process is Due in a                                     Student Disciplinary Hearing?            Balan...
Minimum Due Process Required When                                     Student Could Face Expulsion    • Notice (statement ...
Minimum Due Process Required When                                     Student Could Face Expulsion     • An impartial deci...
Due Process and Title IX    • Per OCR: “Public . . . Schools must provide      due process to the alleged perpetrator.    ...
“Prompt, Equitable” Procedures under Title IX    • In general, institutions must provide:         − Notice of sexual haras...
Investigation/Grievance                                     Procedures            • Overall structure of procedures not ma...
Title IX Minimum Procedural Requirements            • In investigations and hearings, parties              must have equal...
Title IX Minimum Procedural                                     Requirements            • Both parties must be afforded si...
Title IX Minimum Procedural Requirements            • Use the appropriate standard of review              (preponderance o...
Title IX Minimum Procedural                                     Requirements    • Timeliness:    • Time frames must be spe...
Additional Procedure-Related                                     Requirements     • All persons involved in implementing g...
Informal Resolution         • OCR states that this is never appropriate for cases           involving sexual violence     ...
Informal Resolution, cont.            • The institution should reserve the right to              end mediation and move to...
At the Hearing          • Use neutral terminology            (e.g., complainant, not survivor or victim)          • Impart...
At the Hearing, cont.          • Impartial fact finder/decision-maker               – Consider the value of having a Title...
At the Hearing, cont.     • Open or closed hearing?          –      Suggest closed, even if open for other matters        ...
At the Hearing, cont.    • Per OCR, must maintain documentation of hearing      (written findings of fact, transcripts or ...
At the Hearing, cont.        • Testimony             – Consider allowing complainant to testify outside of               t...
After the Hearing            • Findings/decision based only on the              evidence presented            • Remind bot...
After the Hearing, cont.       •      If respondent is found to have violated the institution’s policy by              eng...
After the Hearing, cont.    • Notify complainant and respondent in writing of the      outcome and the sanctions imposed  ...
After the Hearing, cont.    • Appeals         – Not required by Title IX or Due Process         – If available, must be av...
Civil Case Examples        • Cases brought by complainants        • Cases brought by respondents        • Common pitfalls,...
QUESTIONS?© Margolis Healy & Associates, LLC
Navigating theLegislative Minefield       Steven J. Healy    Jeffrey J. Nolan, Esq.
Agenda    • Introduction    • Legislative Review    • The Intersections    • Avoiding the Minefields© Margolis Healy & Ass...
Where are the Mines?   • Title IX is not the only Federal law that imposes     obligations re: sexual violence     • Clery...
Clery Act Basic                                     Requirements  • Policy disclosure – provide accurate statements of    ...
Direct Implications   • Definitions of Sex Offenses (forcible & non-     forcible)   • Campus Sexual Assault Victims Bill ...
Definitions of Sex Offenses  • Uses the FBI’s National Incident-Based    Reporting System (NIBRS) edition of the UCR    ha...
Definitions of Sex Offenses      • Sex Offenses – Forcible        - Forcible Rape        - Forcible Sodomy        - Sexual...
Sex Offense Policy &                                     Procedures• Must have a statement in your ASR about the  institut...
Sex Offense Policy &                                     Procedures• The statement must include:    -      Educational pro...
Sex Offense Policy &                                     Procedures  • When a sex offense occurs      -      Who to contac...
Sex Offense Policy &                                     Procedures   • Notification of on/off campus services        - Co...
Sex Offense Policy &                                     Procedures   • Campus disciplinary procedures must provide     th...
CSCPA of 2000     • Simply required to inform     • Not required to disseminate     • Disclosure must be made in the      ...
Indirect Implications    • Understanding Campus Security Authorities         -       Campus police/security department    ...
Indirect Implications         Campus Security Authority’s Responsibility:                       “to report allegations mad...
When is a Crime Considered                                     “Reported?”        “A crime is reported when it is brought ...
Timely Warning Notices• An institution must alert the campus community of  certain crimes in a manner that is timely and w...
Daily Crime Log   • Any institution that has a campus police     department or security office must     create, maintain a...
Voluntary, Confidential                                     Reporting  • 2 Requirements:       - A list of titles of each ...
Voluntary, Confidential                                     Reporting  • Don’t confuse voluntary, confidential reporting  ...
Voluntary, Confidential                                     Reporting  • Significant implications for Title IX SA    inves...
Voluntary, Confidential                                     Reporting   • Describes procedures, if any, that encourage    ...
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
UNC Title IX Training Seminar, FEB 2013
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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.

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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.
  • UNC Title IX Training Seminar, FEB 2013

    1. 1. University of North Carolina SystemTitle IX and Campus Security Authority Training Program February 13-14, 2013
    2. 2. Agenda • Introductions • About MHA Housekeeping Issues • Schedule • Topical Areas • Digital Guidebook© Margolis Healy & Associates, LLC 2
    3. 3. Faculty • Steven J. Healy • Gary J. Margolis, Ed.D. • Jeffrey J. Nolan, Esq.© Margolis Healy & Associates, LLC 3
    4. 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. 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. 6. Tweet Tweet @margolishealy© Margolis Healy & Associates, LLC
    7. 7. SlideSharehttp://www.slideshare.net/margolishealy© Margolis Healy & Associates, LLC
    8. 8. Setting the Stage: Overview of Title IXInstitutional Obligations and Enforcement Context Jeffrey J. Nolan, Esq.
    9. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 27. QUESTIONS?© Margolis Healy & Associates, LLC
    28. 28. Understanding Sexual & Gender Violence on Campus Dr. Gary J. Margolis
    29. 29. Our conversation today... • Sexual Assault • Stalking • Intimate Partner Violence • Reluctance to Report • Trauma • Impact on Student Development© Margolis Healy & Associates, LLC
    30. 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. 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. 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. 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. 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. 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. 36. Stalking© Margolis Healy & Associates, LLC
    37. 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. 38. Stalking is a... Course of Conduct Crime not Incident Based Crime© Margolis Healy & Associates, LLC
    39. 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. 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. 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. 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. 43. Gender of Stalking Victims Gender of Stalking Victims 78% F emale 22% Male© Margolis Healy & Associates, LLC
    44. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 55. Intimate Partner Violence (IPV)© Margolis Healy & Associates, LLC
    56. 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. 57. Intimate Partner Violence • Power, control and authority • Domination • Isolation • Verbal and physical abuse© Margolis Healy & Associates, LLC
    58. 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. 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. 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. 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. 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. 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. 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. 65. Impact of Trauma Credit to Dr. Sheri Vanino© Margolis Healy & Associates, LLC
    66. 66. Victim Doesn’t Fight Back/No Injuries • “Real” Victims Fight • “Real” Victims Scream • “Real” Victims Bleed OH, REALLY. . . . . .© Margolis Healy & Associates, LLC
    67. 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. 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. 69. Who do you identify with?© Margolis Healy & Associates, LLC
    70. 70. The Good News: Prey Have Many Choices • Flight • Freeze • Fight© Margolis Healy & Associates, LLC
    71. 71. What Do You See?© Margolis Healy & Associates, LLC
    72. 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. 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. 74. Why Would Freezing Be Important ??© Margolis Healy & Associates, LLC; Dr. Sheri Vanino
    75. 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. 76. Impact on Student Development Credit to Dr. Eugene Zdziarski© Margolis Healy & Associates, LLC
    77. 77. Maslow’s Hierarchy Psychology Wiki http://psychology.wikia.com/wiki/Maslows_hierarchy_of_needs© Margolis Healy & Associates, LLC
    78. 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. 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. 80. Student Outcomes • Academic Performance Declines • Lack of Engagement • Social Isolation • Suicide Risk • Withdrawal from Institution© Margolis Healy & Associates, LLC
    81. 81. Summary • Sexual Assault • Stalking • Intimate Partner Violence • Reluctance to Report • Trauma • Impact on Student Development© Margolis Healy & Associates, LLC
    82. 82. Duties & Responsibilities of a Title IX Coordinator Jeffrey J. Nolan, Esq.
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    94. 94. QUESTIONS?© Margolis Healy & Associates, LLC
    95. 95. Defining Roles &Confronting Conflict Steven J. Healy Jeffrey J. Nolan, Esq.
    96. 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. 97. Challenge # 1 Many “touch points” are both positive and potentially negative© Margolis Healy & Associates, LLC 97
    98. 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. 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. 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. 101. Challenge #2 Coordination with local authorities is often a source of tension© Margolis Healy & Associates, LLC 101
    102. 102. Coordination w/local authorities • Campus public safety • Local police • Student Affairs • Prosecution • Advocates© Margolis Healy & Associates, LLC 102
    103. 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. 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. 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. 106. Coordination w/local authorities Successes • Pre-coordination • Close coordination when incident reported© Margolis Healy & Associates, LLC 106
    107. 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. 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. 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. 110. Challenge #3 Access to on & off campus support services© Margolis Healy & Associates, LLC 110
    111. 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. 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. 113. Challenge #4 Lack of understanding/knowledge about gender/sex crimes© Margolis Healy & Associates, LLC 113
    114. 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. 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. 116. Opportunities for Success • Collaboration • Communication • Coordination • Capitalization© Margolis Healy & Associates, LLC
    117. 117. QUESTIONS?© Margolis Healy & Associates, LLC
    118. 118. Complaint Intake, Confidentiality &Conducting Investigations Dr. Gary J. Margolis Jeffrey J. Nolan, Esq.
    119. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 139. Effective Investigations Tools for Effective Investigations© Margolis Healy & Associates, LLC
    140. 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. 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. 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. 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. 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. 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. 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. 147. QUESTIONS?© Margolis Healy & Associates, LLC
    148. 148. Conducting Hearings, Respecting Rights Steven J. Healy Jeffrey J. Nolan, Esq.
    149. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 174. Civil Case Examples • Cases brought by complainants • Cases brought by respondents • Common pitfalls, themes and lessons learned© Margolis Healy & Associates, LLC
    175. 175. QUESTIONS?© Margolis Healy & Associates, LLC
    176. 176. Navigating theLegislative Minefield Steven J. Healy Jeffrey J. Nolan, Esq.
    177. 177. Agenda • Introduction • Legislative Review • The Intersections • Avoiding the Minefields© Margolis Healy & Associates, LLC 177
    178. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

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