With one out of five female college students and one in 33 male college students suffering rape during their academic career and only 10 percent of those sexual assaults getting reported, according to the National Institute of Justice, two firms are working to discourage the number of attacks and increase the likelihood of reporting these crimes.
The Freeh Group, a global risk management firm, and Pepper Hamilton LLC, a multi-practice national law firm, produced a webinar titled “Investigating and Resolving Sexual Assaults on Campus.” The one-hour-long web presentation is available online.
In 2011, the roadmap for handling sexual violence from school districts to universities was the “Dear Colleague Letter” from the U.S. Department of Education Office for Civil Rights (OCR). The letter refers to Title IX of the 1972 Education Amendments and the 2001 Revised Sexual Harassment Guidance, which prohibits discrimination on the basis of sex in educational programs or activities operated by institutions that receive federal financial aid. Types of sexual discrimination forbidden by Title IX include acts of sexual harassment, sexual assault, sexual battery and sexual coercion.
Today, the Freeh Group and Pepper Hamilton webinar incorporates information from the Dear Colleague Letter. The webinar offers guidance to educational institutions regarding the prevention of sexual harassment and the process of investigation and resolution. The webinar includes in its definition of sexual harassment threats, intimidation, stalking, rape, cyber harassment or exploiting vulnerabilities or incapacitation. The Dear Colleague Letter and the webinar don’t add requirements to Title IX, but each explains how the OCR determines if a school receiving federal financial aid is meeting its legal obligations.
The U.S. government also is involved with trying to end the national problem of campus sexual assaults. President Barack Obama signed the Violence Against Women Act (VAWA) on March 7. The bill contains a provision called the Campus Sexual Violence Elimination Act, which requires institutions of higher education to develop and communicate their policies on dating violence, sexual assault, stalking, and domestic violence and increases reporting requirements of these incidents. The bill requires colleges to collect and disclose information about sexual assault and to update and expand domestic violence, dating violence, and stalking services on campuses.
Participants in the webinar are Moderator, Matthew Dolan, managing director, Freeh Group International Solutions LLC, and former general counsel for the United States Naval Academy, and panel members John K. DiPaolo, deputy assistant secretary for policy for the U.S. Department of Education; Gina Maisto Smith, a partner with Pepper Hamilton LLP and former sex crimes prosecutor from the Philadelphia District Attorney’s Office; and Angelo A. Stio III, also a partner with Pepper Hamilton LLP.
The webinar panel recommended steps for schools that include:
1. Schools should produce and make public a notice of nondiscrimination and what’s involved with the grievance process when complaints are being investigated.
Smith recommends that schools use different methods of informing the educational community about sexual harassment grievance procedures including conducting surveys, town hall meetings, web pages, suggestion boxes, student group meetings, and resident advisor meetings. “There are a range of options; no one size fits all,” she says.
2. Schools are required to discuss with complainants the option of going to law enforcement and to provide assistance if a complainant chooses that option. However, some states require schools to report all felonies.
3. An impartial employee should act as the Title IX coordinator with authority and oversight over all Title IX efforts, making sure that the grievance procedures are prompt, investigations are impartial and that everyone involved receives a notice of outcome.
4. Schools should offer both on-campus and off-campus resources including confidential services such as counseling, and options like the issuance of a no-contact order, transfer of residency, and academic accommodations that assist with course work including extended deadlines, dropped courses, tutoring, etc.
5. Under Title IX, when a school knows or should’ve known about sexual harassment, including sexual violence, they are required to take immediate and effective corrective action to eliminate the harassment, prevent its recurrence, and address its effects. Unlike the prosecutor’s office, which has the discretion to refuse cases for reasons such as lack of evidence and lack of criminal intent.
6. The entire campus community, especially implementers and adjudicators, should receive training on what sexual harassment is and what to do when sexual harassment is alleged.
“Those individual implementers and adjudicators have to be trained specifically with respect to the dynamics of the issue of sexual harassment and sexual misconduct, which are unique and different from any other form of misconduct,” says Smith in a phone interview. “They are complex; they are emotional; they are incendiary; they are laced with counter-intuitive behavior; they often result in a delay in reporting because of the psychological overlay of trauma, fear, guilt, shame. They often have no physical evidence and are word-against-word credibility cases that require specialized training in investigating them.”
Smith says the factors that contribute to campus sexual assaults are, “We have a set of 18-, 21-year-olds, first time away from home, access to drugs and alcohol, residential communities in close proximity to each other, no longer under any parental oversight, in a psychological state in life where they’re breaking away and becoming young adults exploring sexuality. That is an equation that leads to circumstances where sexual assault may occur. It doesn’t mean it makes it occur, but it’s a constellation of circumstances that creates a complex environment upon which we see sexual assault occurring.”
When sexual assaults happen several factors determine if victims report the crime and to what degree they cooperate with the investigation including “fear, embarrassment, guilt, shame, knowing the offender, being afraid of the offender, being afraid of social group pressure, fear of retaliation, fear of the unknown, not understanding the policies and procedures, and fear of the criminal justice system,” Smith says.
They also may feel guilty because their attack happened when they had been drinking alcohol. Some 80 percent of all sexual assaults are committed by an acquaintance of the victim, and, on average, 74 percent of perpetrators and 55 percent of rape victims had been drinking alcohol prior to the assault, according to statistics gathered by the New York State Coalition Against Sexual Assault.
No campus is immune to sexual assaults. Smith adds that “sexual assaults affect each gender, all ages, races, and socio-economic classes. It can happen to anyone, by anyone including heterosexual relationships, homosexual relationships, and intimate partners.”