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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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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. SlideShare© 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: gue-201104.pdf • OCR 2001 Revised Sexual Harassment Guidance: e.pdf • 2010 Dear Colleague letter on Harassment and Bullying: 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© 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© 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.
  83. 83. © Margolis Healy & Associates, LLC
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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