E-Portfolio - Law, Policy, and Governance

1. Legal Aspects of Sexual Assault:
On-Campus Housing in Massachusetts
Presented by: Nicole Cartier & Tom Durkee
EDS 720 | Fall 2014
October 27, 2014

2. Statistics
 How frequently are sexual assaults occurring?
19% of CSA respondents were the victim of an attempted or completed sexual assault
since entering college
11.1% were the victims of incapacitated sexual assaults
 Who are the victims involved in most sexual assault cases?
More than 99% of sexual assault perpetrators are male. | Females account for around
95% of sexual assault victims.
Around 90% of victims know their perpetrator.
First Years and sophomores are most likely to be victims of sexual assault.
 Where do most sexual assaults occur?
Around 80% of college sexual assaults happen in either the victim's or perpetrator’s living
quarters.
A 10-year study of college sexual assaults in Massachusetts found that 81% of of campus
rapes and sexual assaults occurred in an on-campus dormitory.
from the 2007 Campus Sexual Assault (CSA) Study

3. Sexual Assault Across the Country

4. Title IX
Title IX of the Education Amendments of 1972
“No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal financial
assistance” (U.S. Department of Education, 1998).
Sex-based discrimination includes sexual harassment and sexual violence.
The Office for Civil Rights is responsible for enforcing compliance with Title
IX.
In general, a complaint must be filed within 180 days of alleged
discrimination.

5. Institution’s Responsibility—Title IX
Every institution must have:
 A Title IX Coordinator
 A policy against sex discrimination  also must be distributed and
available at all times
 Procedures for complaints to be filed in regards to sex discrimination 
must be made known
If an institution knows or should reasonably know of sexual harassment or
sexual violence, it must take immediate action and initiate a Title IX
investigation.
Rape and other sexual assaults must be reported under the Clery Act, if an
institution receives Title IV funding (federal student aid); policies and
procedures, which address sexual assault prevention, must also be reported.

6. Duty of Care – Applied
Duty of Care is a legal obligation imposed upon colleges and universities to provide
a reasonable safeguard to its students, faculty, and staff to prevent any acts that
may foreseeably cause harm to them or others.
When sexual assault occurs in Residence Halls, the duty of care applies to both the
survivor as well as the alleged perpetrator. The assurance of safety and security
usually lies within the Housing Contract.
For duty of care to apply to institutional responsibility, negligence must be found
(i.e. prior knowledge or unsecure facilities).
-This was the case in Mullins v. Pine Manor (1983).
Should the university know about an individual who may endanger other students, it
reserves the right to remove the student from on-campus housing.
***From Westfield State University Residence Life Agreement 2014 -2015

7. Due Process – Applied
“Due Process Clause: A provision of the federal Constitution or a state
constitution that prohibits the government from depriving an individual of life,
liberty, or property without providing that individual certain protections
(especially procedural protections such as notice and a hearing)” (Kaplin and
Lee, 2007, p. 671).
Both the complainant, usually the victim, and the accused have procedural
rights and should be afforded Due Process by an institution.
If the accused lives in the same residence hall as the victim, should the accused
be expected to move? What if the accused person is a staff or faculty member?
Can the accused be suspended in the interim (during investigation)?
Has Procedural Due Process been followed through with?

8. Sexual Assault in MA & Effective
Consent
Between 2002 and 2012 on residential campuses in the state of
Massachusetts, there were a total of 1,510 reported sexual assaults (both
forcible and non forcible).
-This figure was collected using The Campus Safety and Security Data Analysis Cutting Tool on
27 October 2014.
Some state laws include a legal definition of effective consent, such as Texas
for example, but there was not one provided for Massachusetts.
Institutions will often define effective consent in their student conduct codes.
Effective consent, as defined in an institution’s student ‘handbook,’ or its
student conduct code, is important to understand as it may come into play
when looking at sexual assault in on-campus housing.

9. Babson College – Student Handbook
Page 90 of Babson’s Undergraduate Student Handbook begins the policies
and procedures of gender-based misconduct, which addresses part of Title
IX’s requirements.
A definition of effective consent is included, which Babson defines as
“informed, knowing and voluntary. [It] is mutually understandable words or
actions which indicate willingness to participate in mutually agreed-upon
sexual activity. Consent obtained as a result of physical force, threats,
intimidating behavior, duress or coercion is not Effective Consent” (Babson
College, 2014, p. 92).
The Student Handbook is available at all times under Community Standards
section of Babson College’s website, and it can also be obtained as a print
copy in the Student Life Suite during office hours, which is located in the
main student center of campus.

10. Babson College – Student Handbook
(cont.)
I. INTRODUCTION
II. SCOPE OF POLICY/JURISDICTION
III. DEFINITIONS
IV. OPTIONS FOR INITIAL ASSISTANCE
V. INTERIM MEASURES
VI. REPORTING OPTIONS AND CONFIDENTIALITY OF INFORMATION
VII. INVESTIGATION PROCEDURES
VIII. RESOLUTION/ADJUDICATION PROCESS
IX. OUTCOMES
X. APPEAL PROCESS
XI. OTHER PROVISIONS
XII. REVIEW PANELISTS
XIII. PREVENTION AND EDUCATION
XIV. TRAINING
XV. TITLE IX COORDINATOR CONTACT
There are fifteen sections of the gender-based misconduct policies and procedures . . .

11. Babson College - Interview
*Information following was gathered during a phone interview with Colleen
Ryan, the Title IX Coordinator and Director of Community Standards at
Babson College, on October 17, 2014.
“We have to follow Title IX because we receive federal funding.”
Policy is the same regardless of whether or not it is in a residence hall; the
only difference is it is only Clery-reportable if the assault happened on
campus.
“We would never feel comfortable at the level of allegation alone to move
someone . . . unless we have enough information to issue interim suspension.”
-The only time an accused person has ever been suspended in the interim
is if s/he has a history of sexual assault complaints.
-Due Process!

12. Babson College – Interview (cont.)
“Interrupting somebody’s academic process is very serious.”
-This relates to depriving somebody of property interests (due process).
-All allegations and procedures following are on a case-by-case basis, which is
dependent upon various pieces of information (i.e. history of accused student).
“We have to make sure whatever we do is fair across the board.”
-This can relate back to Procedural Due Process.
-What about Duty of Care?
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13. Westfield State University – Student
Handbook
Westfield State University (WSU), a sister institution to Salem State University, updated their
“Policy on Sexual Misconduct, Domestic Violence & Stalking” in August 2014.
What the university defines as Consent is included:
In line with Federal Title IX regulations, the WSU
Student Handbook, along with the policies regarding
the Sexual Misconduct Policy and Conduct Policy, is
available on the universities webpage as well as in
printed format in the Dean of Students Office, which
is located in the Ely Campus Center.

14. Westfield State University – Student Handbook
(cont.)
 A. INTRODUCTION
 B. UNIVERSITY DEFINITIONS
 C. PROCEDURES TO FOLLOW IF YOU ARE A VICTIM OF SEXUAL MISCONDUCT,
DOMESTIC VIOLENCE OR STALKING
 D. PROTOCOL TO BE USED BY UNIVERSITY STAFF FOLLOWING A REPORT OF
SEXUAL MISCONDUCT, DOMESTIC VIOLENCE OR STALKING
 E. UNIVERSITY DISCIPLINARY ACTION
 F. SANCTIONS
 G. RETALIATION
 H. CAMPUS EDUCATION/PREVENTION PROGRAMS
 I. ON-AND OFF-CAMPUS RESOURCES/CONTACTS
The Policy on Sexual Misconduct, Domestic Violence & Stalking contains nine
sections that address various aspects of Title IX requirements such as procedures
that victims can take and protocol for faculty staff members in reporting.

15. Future Direction of Policies &
Procedures at Institutions
On October 20, 2014, the Department of Education released new rules to take
effect as of July 2015 for the Clery Act by the Violence Against Women Act
(VAWA) Reauthorization Act of 2013, which align with the mission of ACPA’s
Presidential Task Force on Sexual Violence in Higher Education.
“These regulations are intended to update, clarify, and improve the current
regulations . . . Institutions will be required to collect and disclose statistics of
crimes reported to campus security authorities and local police agencies . . .
students, prospective students, families, and employees and potential
employees of the institutions will be better informed about each campus' safety
and security procedures. Ultimately, the improved reporting and transparency
will promote safety and security on college campuses” (Federal Register: The
Daily Journal of the United States Government, 2014).
-Duty of Care

16.  Let’s take a look at some of the changes to be made . . .
 https://www.federalregister.gov/articles/2014/10/20/2014-
24284/violence-against-women-act
 The Massachusetts Board of Higher Education “[will be coordinating] a
statewide effort among the public colleges and universities to
strengthen campus policies around sexual assault prevention, and to
review the Board’s own guidelines on prevention and response . . . The
Board declared a ‘zero tolerance’ for sexual violence” (MA Department
of Higher Education, 2014).
Future Direction of Policies &
Procedures at Institutions

17. “Campus-based sexual assault programs should have three goals: to educate students, faculty,
and staff about sexual violence; to prevent sexual assaults involving members of the campus
community; and to provide an appropriate response when sexual assaults occur.”
-Rape Treatment Center,
Santa Monica

18. References
 ACPA. (n.d.). Task force on sexual violence in higher education. Retrieved from
http://www.myacpa.org/tfsvhe
 Anderson, N. (2014, May 1). 55 colleges under Title IX probe for handling of
sexual violence and harassment claims. Retrieved from
http://www.washingtonpost.com/local/education/federal-government-releases-
list-of-55-colleges-universities-under-title-ix-investigations-over-handling-of-
sexual-violence/2014/05/01/e0a74810-d13b-11e3-937f-
d3026234b51c_story.html
 Babson College. (2014, October). 2014-2015 Babson Undergraduate Student
Handbook. Retrieved from
http://www.babson.edu/program/undergraduate/Documents/undergraduate-
handbook.pdf
 Federal Register: The Daily Journal of the United States Government. (2014,
October 20). Violence against women act: A rule by the education department on
10/20/2014. Retrieved from
https://www.federalregister.gov/articles/2014/10/20/2014-24284/violence-
against-women-act

19.  Jacobs, P. (2014, June 4). Here are the staggering numbers behind the college
sexual assault crisis. Retrieved from http://www.businessinsider.com/college-
sexual-assault-who-where-when-2014-5
 Kaplin, W.A. and Lee, B.L. (2007). The law of higher education (4th ed.). San
Francisco, CA: Jossey-Bass.
 MA Department of Higher Education. (2014, October 21). MA Board of higher
education orders review of campus sexual assault policies. Retrieved from
http://www.mass.edu/aboutus/documents/2014-10-
21%20NEWS%20RELEASE-
Board%20Resolution%20on%20Sexual%20Assault.pdf
 Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass.
1983) http://masscases.com/cases/sjc/389/389mass47.html
 Not Alone: Together Against Sexual Assault. (n.d.) Intersection of title IX and
clery act. Retrieved from https://www.notalone.gov/assets/ferpa-clerychart.pdf
References

20.  U.S. Department of Education. (1998, August). Title IX and sex
discrimination. Retrieved from
http://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html
 U.S. Department of Education. (n.d.) Federal Programs. Retrieved from
http://federalstudentaid.ed.gov/site/front2back/programs/programs/fb_03_01_
0030.htm
 U.S. Department of Education: Office for Civil Rights. (n.d.). Know your
rights: Title IX prohibits sexual harassment and sexual violence where you fo
to school. Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/title-
ix-rights-201104.pdf
 Westfield State University. (2014, August). Policy on sexual misconduct, domestic
violence and stalking. Retrieved from
http://catalog.westfield.ma.edu/content.php?catoid=10&navoid=455
References