Title IX: Campus Accountability
Maybe I was wrong to expect incisive writing from an author who said at the outset that he was writing only about the "human drama" of injustice, but time and again Krakauer diverged from the "human drama" genre and dipped a literary toe into serious legal subjects like the constitutional rights of accused students, definitions of rape in the criminal justice system, and what happens during a criminal prosecution that causes victims to feel retraumatized. Read entire white paper here.
Make sure you immediately send a signed and dated copy, by email or registered snail mail, to ALL relevant school officials, including the Title IX coordinator, deans, campus-based law enforcement officials, any and all "advisors" and "counselors," whether on-campus or off, health-care providers, and the university/college president. As with all documents, keep a copy for yourself and send one to your parents.
What can be done to stop college assaults? Watch Video
SEXUAL ASSAULT ON CAMPUS:
THE SIMPLE TRUTH ABOUT TITLE IX THAT COLLEGES DON'T WANT YOU TO KNOW.
Anyone in college or planning to attend college (and all parents) must watch this video.
Sexual assault (as well as all forms of targeted violence that occurs "on the basis of sex") is a civil rights violation under federal law on campus as well as a crime in the "real world." It is also a civil "tort." A victim can pursue justice in many different legal venues to address the same underlying incident. She is not required to choose between the "real world" criminal or civil justice and campus justice because the different venues serve different purposes. The criminal justice system involves government officials initiating legal action against a person accused of a crime against society. The victim is not the one bringing the charges, nor is the victim responsible for ensuring that the government performs its functions appropriately. All crimes are the responsibility of the government; the victim is a witness for the state and the state bears full responsibility for dealing with violence against women whether it occurs in the "real world" or on campus.
Schools are not the government and they are not authorized to deprive an individual of liberty. Campus officials have substantial discretion to take whatever steps they believe are necessary to deal with campus problems. For example, they can expel a student for using drugs without having the drugs tested by a forensic drug lab which would be required as a matter of "due process" in the "real world" criminal justice system. Similarly, schools are not required to comply with "real world" due process rights when a student faces allegations of violence against a woman or any similar civil rights violation that occurs "on the basis of" a protected category such as race or national origin. Furthermore, the case on campus is not between the victim and the offender, it is between the school and the offender because campus officials are obligated to address civil rights problems on behalf of all students, not only individual victims. This is why federal law requires schools to take action even if a victim declines to file a formal complaint. Schools have no choice but to respond when they "know" or "reasonably should know" that civil rights laws may have been violated. The victim bears no burden of taking specific steps to ensure that school officials comply with their federal responsibilities.
CIVIL RIGHTS LAW
Civil rights laws guarantee women equal access to education and protection from discrimination "on the basis of sex." Discrimination comes in many forms including sexual harassment, the most severe expression of which is violence. ("violence" includes sexual as well as physical and "dating" or "domestic" violence; "harassment" also includes things like stalking and other non-physical conduct). All "severe or pervasive" harassment or violence against women is a civil rights violation and schools are mandated to address these issues under Title IX of the Education Amendments of 1972. Title IX is the same type of civil rights law as Title VI of the Civil Rights Act of 1964 which forbids discrimination, harassment and violence "on the basis of" race, national origin, and other protected class categories. Students who report incidents under Title IX must be provided with the same rights as are afforded students who report incidents under Title VI.
Many jurisdictions also have their own state civil rights and related state constitutional provisions which impose additional obligations on schools over and above that which is required by federal law under Title IX.
Under civil rights laws, an offense is established when the evidence shows an incident was "unwelcome," "offensive," "based on sex," "severe or pervasive" and that it has interfered with a victim's equal access to education. A school's response must be "prompt, equitable and effective." The United States Department of Education explained what these terms mean in a "Dear Colleague Letter" dated April 4, 2011. (click here to read).
"Prompt" has no precise meaning but has been interpreted to require a final decision (including all appeals and efforts to reconsider a decision, etc.) in no more than 60 days. There may be exceptional circumstances when a delay beyond 60 days is necessary but the presumptive limit is 60 days.
"Equitable" means that whatever standards are applied to the redress of harassment and violence "on the basis of" race, national origin, etc., under Title VI, those same standards must be applied under Title IX to the redress of harassment and violence "on the basis of sex."
"Effective" means the measures undertaken by a school must have a measurable effect in redressing and preventing harm from recurring not only for the individual victim but also for women as a class.
Criminal laws are never enforced on campus and can only be enforced by "real world" law enforcement and prosecutorial officials in "real world" courts. Criminal charges can only be filed by government officials (with a few exceptions because private persons can, in certain circumstances, file "civilian" requests for criminal charges.)
Relevant criminal charges not involving civil rights offenses include crimes such as rape, sexual assault and battery, stalking, dating and domestic violence and criminal harassment. While these terms are sometimes incorporated into school policies, they cannot be used to determine whether a Title IX offense occurred. The difference between criminal law terms and civil rights terms is important. The offense of rape in many jurisdictions, for example, requires proof of "force" and "non-consent." These terms are much more difficult to prove than the civil rights terms of "unwelcome" and "offensive." Schools that apply criminal law terms to the assessment of Title IX incidents are violating federal civil rights laws.
CIVIL TORT LAW
Victims can file civil lawsuits in "real world" courts alleging torts such as assault and battery, infliction of emotional distress and violations of privacy rights. Civil lawsuits can be filed against perpetrators as well as schools and school officials depending on the circumstances. In some jurisdictions, victims can file suit alleging "gender-based" violations of state civil rights laws. While the right to sue for "gender-based" violence under the federal Violence Against Women Act was struck down by the United States Supreme Court several years ago, states such as Massachusetts have so-called "state-VAWA" laws that enable victims to sue under analogous state law and state constitutional tort provisions. As a matter of federal law, schools can be sued under Title IX but not other related federal laws such as the Clery Act, the VAWA or the Campus SaVE Act. Thus, it is critically important that campus victims report incidents only under Title IX (and state civil and constitutional rights laws if applicable) and not under the Clery Act or other generic student misconduct policy as this will preserve the widest array of legal options should external redress become necessary.
Title IX was enacted in 1972 as a civil rights law that explicitly provides women with equal access to education and protection from discrimination including gender-based violence.
Soon after its enactment, however, Title IX was promoted in society as a sports equity rule that required schools to provide more opportunities for girls and women to play sports in high school and college. Interestingly, although Title VI provided students with the exact same rights regarding discrimination on the basis of race, national origin, etc., as women received under Title IX regarding discrimination on the basis of sex, Title VI was never interpreted as a sports equity law. To the contrary, Title VI has always had as its primary purpose the prevention of harassment and violence against students on the basis of race, national origin, etc. Only women were segregated out such that their civil rights became a sports equity issue instead of a safety and equal access to education issue.
In the late 1980s, the Department of Education for the first time stated that Title IX applied to gender-based violence. The United States Supreme Court also ruled in a series of cases that sexual harassment and assault were civil rights issues and that women and girls could file federal lawsuits for violations of rights under Title IX (and Title VII which covers gender-based discrimination in employment.)
Nonetheless, because many schools persisted in refusing to comply with Title IX as an anti-violence law and in the 1990s, Attorney Wendy Murphy was looking for a good test case on campus so she could file a complaint with the Office for Civil Rights at the Department of Education and bring the issue to the attention of students and the public. In 2001, Murphy found that case at Harvard after students there asked a teacher for advice about a growing problem of sexual assault on campus. That teacher (Rosenfeld) knew nothing about Title IX, so she sent the students to Attorney Murphy who filed the first ever policy complaint with the Office for Civil Rights at the Department of Education against Harvard College in 2002.
Harvard was investigated for having adopted a policy of requiring sexual assault victims to produce "independent corroboration" as a prerequisite to redress on campus. Murphy served as a Visiting Scholar at Harvard Law School during the investigative period and worked with OCR to coerce Harvard to retract the corroboration rule. It was the first time any school had been investigated by OCR in response to a complaint about a policy, without any particular student's rights being violated. At the end of the investigative period, Harvard was forced to change its policy to comply with Title IX. Murphy then wrote the first ever law review article describing the relationship between Title IX and sexual assault, after which many advocacy groups were created to meet the rising demand of students around the country who began to recognize sexual assault on campus as a civil rights issue. (Read that law review article here.)
The next major development in this area occurred in the fall of 2010 when Murphy was hired by Harvard Law School to consult on a sexual assault/Title IX matter. Murphy was also hired to represent a victim at Princeton University. Murphy informed both schools that their policies were not complaint with Title IX and that they were violating victims' rights. Both schools refused to change their policies so Murphy filed complaints with OCR which complaints were accepted for investigation in 2010. Victim "advisors" at Harvard (including Rosenfeld and Mackinnon) aggressively tried to prevent Murphy from filing a complaint against Harvard Law School but Murphy not only filed with OCR, she sent the case (along withe the case against Princeton) to the D.C. Headquarters of the Department of Education accompanied by a request that the Department issue some form of "global guidance" because problems at both schools were systemic in higher education. The National Center for Higher Education Risk Management and Security on Campus sent amicus letters to the Department in support of Murphy's request. The Department agreed and in April 2011 issued a "Dear Colleague Letter" (DCL) providing all schools with the "global guidance" Murphy had requested. The DCL made clear that Harvard Law School and Princeton University (like many schools) had noncompliant policies in place.
Days after the DCL was announced, the Campus SaVE Act was filed with Congress. Advocates were told it would "codify" the Dear Colleague Letter into federal law but that was a lie. The bill was designed to overturn the DCL but by the time advocates figured out what was happening, the bill had been tacked onto the Violence Against Women Reauthorization Act and most women's and victims' rights groups went silent because they needed their VAWA funding.
While SaVE was becoming law, many Title IX investigations (including the cases against Harvard Law and Princeton) languished for years even though investigations are supposed to be completed within 180 days.
After SaVE was signed into law by President Obama in March 2013, (and scheduled to take effect one year later) many schools changed their policies to take advantage of SaVE and weaken women's rights on campus.
Right before its effective date of March 7, 2014, a federal lawsuit was filed in D.C. federal court by Attorneys Wendy Murphy and James Marsh against the Departments of Education and Health and Human Services to stop SaVE from from being enforced on any campus. The suit alleged that SaVE violates women's equal protection and due process rights because it subjects gender-based violence on campus to worse standards compared to other forms of targeted violence on the basis of factors such as race and national origin. That lawsuit was approved to proceed on March 6, 2014. Weeks later, Harvard led the nation in rejecting SaVE when it announced its plan to adopt a new policy expressly providing for equitable redress for gender-based violence under civil rights standards. Other elite and ivy league schools have made some changes but have not gone as far as Harvard.
Students and advocates should proactively examine whether a particular school is applying SaVE's unfair standards, and should take appropriate steps to stop SaVE from being used to address any form of gender-based violence on campus. Application of substandard laws only for matters involving violence against women promotes the dangerous idea that women should accept second-class status on campus and in larger society.
The SaVE Act weakened women's rights on campus for the first time since Title IX was enacted in 1972 and made women explicitly unequal on campus by allowing schools to apply less protective standards only for gender-based violence. Among other problems, the SaVE Act uses criminal law standards instead of civil rights terms to define gender-based violence. SaVE also allows schools to apply a burden of proof more onerous than mere "preponderance of the evidence" (about 51% proof) when assessing whether an incident has been proved sufficiently enough to merit sanctions against an offender. A more onerous burden of proof, such as "clear and convincing" evidence, allows schools to devalue the word of a woman as inherently less credible than the word of her attacker or any other student reporting or responding to reports of civi rights violence on campus. SaVE also eliminated the requirement that schools provide "equitable" redress. The word "equitable" was replaced in SaVE with the word "fair," which is a far weaker legal standard because "equitable" means women must be treated with the exact same legal protections as victims of violence on the basis of race, national origin, etc., while "fair" allows less than fully equitable standards to apply. SaVE also allows schools to substantially delay making a final decision in a victim's case, until the eve of her graduation, if not many years later - and potentially never at all! Under Title IX, the final decision must be made within approximately 60 days. This is important because a victim cannot be restored to equity - and cannot achieve equal access to education if her rights are not protected until after graduation. (More details on problems with the SaVE Act can be seen here.)
Because the SaVE Act allows schools to have two different and disparate tracks for responding to violence against women on campus, one under Title IX and one under SaVE, advocates should always consider filing a lawsuit in the "real world" to prohibit a school from applying SaVE on constitutional grounds. In addition, it is critically important that victims understand the differences between Title IX and SaVE and always report every form of gender-based violence as a Title IX and civil rights matter. Victims should explicitly state that they are not seeking redress under any other student conduct code provision or sexual misconduct policy and that they want redress only under TItle IX, subject to exactly the same standards as are applied to the redress of violence on the basis of race, national origin, etc., Victims should emphasize that if they are not afforded redress under Title IX they want no redress on campus whatsoever. If forced to submit to substandard redress after making this point clear, a victim can and should seek redress from the Office for Civil Rights and/or should file a civil rights lawsuit in a "real world" court.
Any school that applies SaVE's substandard provisions is vulnerable to external legal trouble but students must beware: if a victim only seeks redress under SaVE and the school then only violates SaVE, she will have no meaningful external legal remedy because the Office for Civil Rights only deals with Title IX. It does not have authority to hold schools accountable for violating a victim's rights under SaVE. "Real world" legal proceedings won't help either because lawsuits against school are forbidden under SaVE's immunity clause.
Title IX applies to all schools, public and private, that receive federal funds. Nearly every college and university in the nation receives federal funds. Public colleges and universities are also controlled by Title IV of the Civil Rights Act of 1964, which covers discrimination "on the basis of sex." Title IV does not apply to private schools. State civil tort and civil rights laws in general apply to both private and public schools but not all states have laws that require schools to respond to gender-based discrimination and violence. State criminal laws apply to both private and public schools irrespective of federal funding. In certain circumstances federal criminal laws also apply. (e.g., internet crimes and crimes that cross state lines, which particularly affect schools near the borders of two states.)
Schools must ensure that women receive equal access to education and they must prevent discrimination "on the basis of sex," which includes all forms of sexual and gender-based violence. Whether responding to individual incidents or broader concerns about the educational environment schools must respond in a "prompt, equitable and effective" manner. The meaning of these terms is addressed in a variety of sources including court decisions, federal guidelines, regulations and in OCR decisions. For a compilation of relevant OCR decisions click here. The Department of Education's April 2011 Dear Colleague Letter is another important source of information that details the steps schools must take. It can be found here.
According to the Department of Education, conduct is "unwelcome" if a student did not "request or invite" it and if she "regarded the conduct as undesirable or offensive." Acquiescence in the conduct or failure to complain does not mean the conduct was welcome. For example, conduct is unwelcome if a student acts out of fear, or because her capacity is diminished due to alcohol or drugs. The Department of Education also states that "the fact that a student may have accepted the conduct does not mean he or she welcomed it," and the fact that a student willingly participated in conduct on one occasion does not mean the same conduct was welcome on a subsequent occasion.
To put it simply, it is not legally possible to submit to that which is "unwelcome." Another way to think about it is that in a civilized society we forbid people to submit to conduct we define as harmful under civil rights laws because to allow such submission would be to nullify the purpose of the law. This is why, for example, we forbid people to submit to slavery even if they subjectively "welcome" the activity. People are free to submit to all sorts of harmful conduct but not if it constitutes a "severe or pervasive" offense under civil rights laws and all forms of gender-based violence are per se "severe."
This civil rights approach to the problem of gender-based violence on campus does not apply when a school uses criminal law standards such as "non-consent" and "affirmative consent" to assess a situation. Criminal law terms are far less respectful of women's autonomy and bodily integrity in that they allow a woman to submit to even extremely harmful "unwelcome" "offensive" and "severe" or "pervasive" conduct so long as the perpetrator says he believed she was consenting or believed she gave affirmative consent.
Because of these important differences between civil rights terms and criminal law terms, it is critically important that victims report all gender-based harm only under Title IX to ensure that the more generous standard of "unwelcomeness" is applied to an assessment of whether an offense occurred. If there was no "request or invitation" or the conduct was "unwelcome" because it was either "undesirable or offensive," a civil rights offense has been established under Title IX irrespective of what the offender believed at the time of the offense.
As a victim it is important not to start the process of reporting an incident by talking to a Title IX coordinator, "advisor" or anyone else affiliated with the university. It is best to start with your family or a trusted independent attorney who has no affiliation with the school.
Many schools encourage victims to report incidents internally and to first talk to a counselor or an "advisor" on campus, but "advisors" affiliated with the school often persuade victims to resolve incidents quietly and without filing police reports or the kinds of reports on campus that can lead to meaningful redress and sanctions against offenders. While it may be appropriate for an incident to be resolved without criminal charges or a formal complaint, the victim is entitled to unbiased advice from an outside knowledgeable source before making that decision. School-based "advisors" and even affiliated advocacy groups like the "Victims' Rights Law Center," the "Know Your IX" group and rape crisis organizations nearby to schools, do not always act independently as they often receive government funding and other sources of financial support that influence them to provide advice that favors the interests of schools over victims.
"Advisors" and others will seem supportive and may even provide meaningful emotional support, but if the goal is to ensure effective enforcement of a victim's rights, only truly independent advice is appropriate.
With unbiased advice, a victim can then take effective steps to enforce her rights in criminal and/or civil court as well as on campus.
Just as it is important for a victim not to seek advice from a biased "advisor," a victim should resist seeking medical care or counseling on campus. A victim should also refuse to submit to a rape kit exam at a hospital nearby to or affiliated with the school. SANE and SART nurses can be biased in favor of schools and take steps to thwart an effective forensic exam. For example, a nurse might fail to take or preserve photographic evidence of injuries, or delay taking a blood or urine sample in order to allow rape drugs and alcohol levels to dissipate. (On this issue it is critically important that victims be advised of the option to have their hair tested for the presence of rape drugs. Drugs dissipate quickly in blood and urine, but remain in hair for many months. Most schools do not share this information with victims). A biased nurse might also ask improper, personal and irrelevant questions such as "have you ever had mental health problems?" "have you ever been sexually assaulted in the past?" and "are you taking any medications?" These questions can lead to the improper inclusion of sensitive information in a medical file, which then gets shared with others thus forces the victim to choose between justice (on campus or in the "real world) and protection of personal information from needless disclosure to others. While some personal information can sometimes be relevant, it is only the rare case when such information is so important that it's worth exposing a victim to the pain of revealing private data to others. There should be a "don't ask/don't tell" policy in place such that victims are not asked personal questions (questions about the rape are not "personal') and if they are asked, victims know not to answer.
To protect against biased medical and rape kit procedures, a victim should seek medical care and obtain a rape kit (if at all) at a hospital far from the school and not affiliated with any other university. Because most sexual assaults occur between people who know each other, most rape kits produce nothing of value - but they do subject the victim to needlessly intrusive questioning and medical procedures that can be retraumatizing. An independent advisor can help a victim decide whether it's worth it to submit to a forensic examination and if so, which facility is likely to conduct the examination in an unbiased manner.
In connection with on-campus proceedings, a victim should always insist that her rights be enforced only under Title IX (and Title IV if it's a public college or university). She should never ask for or allow an incident to be resolved under a "Sexual Misconduct Policy" unless such policies are part of a broader anti-discriminatlon/civil rights policy that equally addresses all forms of misconduct "on the basis of" all protected class categories such as race and national origin. This is critically important because schools that respond under generic "Sexual Misconduct" policies and not obligated to proceed under civil rights standards or comply with Title IX, and title IX requires application of better, faster and easier standards of proof than generic "Sexual Misconduct" policies. The generic policy approach is used by schools that have chosen to adopt and apply standards from the SaVE Act (also known as the Clery Act and/or the VAWA). The generic policy approach makes it much easier for a school to rule in favor of an offender.
It is also important that a victim describe what happened only once and that she not reveal irrelevant personal information. She should make certain that all information is sent via email to the Title IX coordinator and/or the school's "advisor" as well as the dean of students and university president. Too many schools deny having knowledge of important information and unless the victim's communications are in writing and shared with many different school officials copied on the same email, it will be difficult to prove who knew what when.
Schools may try to direct victims not to communicate in writing, via email or otherwise, and they may insist that anything in writing be provided only to an "advisor." Beware of schools that try to build these types of "walls of silence." The safest places for young women are schools that encourage openness and accountability and that describe violence against women not only as a "civil rights" issue but as a civil rights issue "on par with" violence on the basis of race, national origin, etc.
As a witness, you should always report what you see or hear, even if it's only a rumor, because you may be unaware of other information also being reported that supports the information known to you. You should put everything in writing and send emails to every responsible school officials to ensure that nobody can later claim not to have known.
As a witness you might also be seen as a "bystander" and you might think your role as limited to that which is described in bystander programs, but such programs do not typically promote openness and accountability. They emphasize the importance of students helping others at risk, but such programs can promote the harmful idea that women need to be saved while shifting the focus away from offenders and schools.
One benefit of bystander programs is that they encourage the community to understand violence against women as a harm to all students rather than just the individual victim in a particular case. But because such programs stop short of requiring all students and all bystanders to report incidents immediately and in writing, bystander programs are fairly ineffective as a way of holding schools accountable for primary and tertiary (after the fact) prevention.
Witnesses should also take steps to protect themselves against intimidation and retaliation such as efforts to interfere with reporting and giving statements or testimony in the "real world" or on campus. Intimidation tactics against a witness can lead to criminal charges for witness intimidation and/or obstruction of justice, thus, all incidents of intimidation should be reported to campus officials as well as "real world" police and prosecutors.
If you can get a urine or blood test at a hospital within 8 hours it is worth trying but such tests may not show proof of drugging for several reasons including that tests look for particular substances and many hospitals do not test for all possible rape drugs. Thus, a negative test is not necessarily proof that drugs were not used. If more than a few hours have passed, or even if many days or months have passed since the incident, a hair test is an excellent option because drugs do not dissipate in hair and are only eliminated when hair grows out and is cut off. The longer the victim's hair the better the chance a test can be done successfully even many months after an incident though it is important that the test be done by a reliable lab.
Most hair testing labs in the United States will not conduct private tests, and many that do are not worth the money because they do only superficial tests such as looking for the presence of GhB but not "dating" the likely time period when drugs entered the body. Many labs are also incapable of testing for the significance of the amount of GhB found. For example, they will claim GhB was detected but only at a "naturally occurring" level. This is unhelpful as well as irrational. A test should look at an entire length of hair to note not only the presence of GhB but also whether the substance is noted at a higher level in a particular location. In other words, is there a spike of GhB at a particular point as this would denote a one-time use of an amount far and above a "naturally occurring" level?
Most labs that conduct hair tests will do so only if requested by law enforcement or in connection with certain legal proceedings, but few police and prosecutors' offices ever ask for hair tests. Some labs will conduct high quality hair tests in response to a private person's request but it is critically important to use the services of a trusted attorney when retaining a lab to ensure that testing is done correctly and that the results will be admissible as evidence.
Any amount of incapacity, whether from mental health concerns or consumption of a substance that affects a person's ability to make decisions, raises a presumption that a victim was unable to make a knowing, intelligent and voluntary decision about her body.
The issue of a victim's incapacity under Title IX relates to an assessment of whether the conduct was "unwelcome." The word "unwelcome" applies in civil rights cases and is primarily concerned with the subjective state of mind of the victim. This is very different from criminal law where terms such as "non-consent," "affirmative consent" and "force" are used. These terms are far less deferential to the victim's subjective experience and are more difficult to prove because unlike "unwelcomeness" they accord substantial weight to the mindset of the perpetrator. This necessarily devalues the victim's 100% authority over her body by the amount of weight accorded the perpetrator's state of mind.
"Unwelcomeness" grants much more weight to the subjective experience of the victim, which is important in all cases but especially in cases in which alcohol is involved because any diminution of the victim's capacity is seen as a vulnerability under "unwelcomeness" (he took advantage of a person's weakness) instead of as a liability under "non-consent" and "affirmative consent" rules (she is responsible for causing the consequences that led him to mistakenly believe she consented).
This is not to say that all sex after drinking is forbidden. To the contrary. The issue is not whether sex can occur but rather, who bears the risk of getting in trouble in the event an incident is reported as an offense? A line should be drawn to make clear to the harm-doer that acting against another person's body when that person lacks full capacity is a risky decision, and if harm is done (which is determined solely by the victim because it's her body) the harm-doer bears the consequences. Anything less permits and incentivizes violence by allowing offenders to exploit high risk situations. A burden of restraint should always be imposed on the potential harm-doer and the message should be clear about why this is so. Without requiring harm-doers to resist acting in dubious circumstances, the involvement of alcohol creates a needless gray area that will invariably inure to the detriment of the victim and enable at least some violence to occur with impunity. Put another way - it's better to lose an erection than commit rape.
That a perpetrator is intoxicated changes nothing because while both people might be equally incapacitated, they do not have equal experiences. One person has an orgasm while the other experiences pain, degradation and in many cases literal sexual enslavement.
Allowing alcohol to diminish the responsibility of an offender not only rewards the behavior without justification, it also encourages drinking as a way for an offender to set up conditions under which if he does get in trouble, he can claim he was too intoxicated to be held responsible.
Of course, rape is not a specific intent crime anyway and the state of mind of the offender - whether diminished or not - is almost always irrelevant in the "real world" criminal justice system. An offender's state of mind should be even less relevant on campus because the educational environment is supposed to be a better and more egalitarian venue than the "real world." In a truly egalitarian environment, an offender's intoxication would never be accepted as a reason to diminish his responsibility for his actions because such a discount would necessarily diminish the value of the victim's 100% authority over the self. Put another way, the victim would only be entitled to autonomous decision-making over her body to the extent it did not interfere with her attacker's mistaken perception of her actual state of mind. This idea indulges the perverse notion that an offender has a right to impose his body parts into the intimate body parts of others, even when they don't want him to, so long as he claims to have made a mistake about what they wanted. Note that in theft cases, intoxication of the offender is not a defense and an incapacitated victim is not held responsible for the actions of the thief. While an incapacitated thief could, in theory, reasonably believe he had an ownership right over the victim's property, there can be no similar claim regarding another person's body because unlike money, people cannot be "owned."Some argue that it could be unfair to a "sincere offender" to consider only the victim's state of mind in determining whether an offense occurred. Perhaps so, and a truly sincere offender who believes a sex partner is exercising free will should not be punished, however, the rules on campus and in larger society should not be constructed to accommodate rare exceptions, they should be constructed to protect and value autonomy and bodily integrity. Codifying rules that expressly allow mistakes to be made will only invite harmful behavior. It is perfectly acceptable to make exceptions in rare "sincere offender" cases but neither campus policies nor "real world" laws and legal doctrines should incentivize violence against women by codifying the circumstances under which non-sincere offenders can avoid accountability by claiming to be sincere.
You are entitled to request protection in several different ways. First, you can ask campus officials to issue a protective order forbidding the offender to contact you, directly or indirectly. This can be done whether the offender lives on campus or off. If he lives on campus, you can ask that the offender be made to move his dorm room, change his classes and/or move off campus. Schools are not required to honor your request but if you obtain an order in a "real world" court, school officials must enforce it even if they do not have a similar campus-issued order in place .
Some schools will issue "mutual" orders that equally forbid the victim and offender to contact each other. This is illegal. A victim cannot be ordered by a school to restrain her freedom. Only an offender can be compelled to submit to a restraint on his freedom.
A violation of an on-campus protective order can lead to serious sanctions, including suspension from school. Thus, it is critically important that victims not agree to the issuance of any kind of order against them. If a school insists that a victim submit to such an order, the victim should take appropriate steps to challenge that decision in a "real world" court and/or at a federal and/or state oversight agency such as the Office for Civil Rights at the Department of Education.
In addition to a campus-based protective order, a victim can seek a restraining order in the "real world." These orders are obtained in local community courts or higher level/superior courts depending on the law in the jurisdiction. In many states, a victim can get a restraining order in a community court only if she had a dating relationship with her attacker. Many campus assaults do not fit this criteria which leaves the victim with no choice but to seek a civil rights restraining order at the superior court level under "preliminary injunction" rules. This option can be effective but it also enables offenders and their lawyers to engage in litigation tactics that can be threatening and intimidating. For example, an offender's lawyer could propose to conduct "discovery" and ask the victim to submit to a deposition. Perpetrators' lawyers also sometimes file "counter claims" and threaten to sue the victim unless she drops her restraining order. When these illegal tactics are used, victims have many options including filing motions under anti-SLAPP laws to dismiss the tactics and impose fines against offenders' attorneys for misusing the legal system to deter victims from seeking redress.
Lower level "community court" restraining orders are usually preferable simply because violations lead to arrest and prosecution whereas a violation of a superior court civil rights restraining order can lead only to a finding of civil contempt. Community court orders are also preferable in that the accused cannot conduct "discovery" or otherwise use the legal process to engage in intimidation strategies. Whether a community court order is available in a particular case depends on the law in the jurisdiction, however, all states must provide victims with an opportunity to obtain a superior court civil rights injunction/restraining order because all states are required to enforce Title IX and Title IX allows victims to obtain protective orders under equity principles. State civil rights laws also apply as do constitutional doctrines such as equal protection and due process.
Protective and restraining orders commonly include "no-contact" provisions, but victims should consider other provisions as well such as having an offender be prohibited from attending certain on-campus functions or clubs and requiring an offender to leave a public space such as a park or restaurant if he becomes aware that the victim is present. On-campus orders should specify that a violation will lead to expulsion because without a specific declaration of a particular punishment, an offender could successfully avoid punishment altogether by claiming he did not have sufficient "notice" that a violation could result in a particular punishment.
Schools have authority to forbid non-students to enter their property or attend school-sponsored events. This is typically accomplished by the issuance of a "No Trespassing" order. If violated, the order allows "real world" law enforcement officials to prosecute the offender in a "real world" court.
Victims are wise to ensure that "real world" police officials are provided with a copy of "No Trespassing" orders and all other campus-based orders. "Real world" officials will not act to enforce "No Trespass" and other orders unless they have a copy in-hand. "Real world" officials should be provided with copies of all orders, such as protective orders and restraining orders, whether issued by school officials or "real world" judges.
It doesn't matter that you may be a student from a different college or not a college student at all. Any person who suffers a civil rights violation either on campus or in circumstances where there is a sufficient nexus between the incident and the school is entitled to seek redress under Title IX.
It doesn't matter that an incident occurred off campus. Any person who suffers a civil rights violation in circumstances where there is a sufficient nexus between the incident and the school is entitled to seek redress from that school under Title IX.
Some schools refuse to address harassment in cyber-space or via social media on the grounds that such conduct did not occur "on campus" and/or is "free speech." This is wrong. Free speech ends when harassment begins and speech becomes harassment when it is "severe or pervasive," "offensive" and "based on sex." Schools have the same legal obligation under Title IX to address on-line harm as physical or sexual harm and they have the capacity to stop cyber-harassment by ordering an offending student to stop the behavior under threat of expulsion and taking technological steps to block or forbid access to the technology or site facilitating the harassment. In a landmark case on this issue against Hofstra University several years ago, Attorney Wendy Murphy filed an OCR complaint in a situation where a student at Hofstra was being harassed through a website called "JuicyCampus.com" and Hofstra officials refused to take action. The OCR complaint not only forced Hofstra to take steps to stop the harassment, it caused "JuicyCampus.com" to be shut down completely. It was the first time any OCR office ruled that cyber-harassment in the form of speech was covered by Title IX and that schools are mandated to take steps to stop the harassment when there is a sufficient nexus between the harassment and the school environment. Put another way, it doesn't matter where the conduct occurs, it matters where the harm lands. Thus, if a victim (or women as a class) suffers harm related to her education because of on-line harassment, she can seek redress under civil rights laws at any campus where she experiences the harm.
Some schools have limitation periods on when a victim must report an incident in order to take advantage of campus disciplinary proceedings for generic misconduct, but there are no limitation periods under Title IX for "severe or pervasive" harassment, including violence, because the hostile environment created from such actions continues so long as the incident is unresolved. The clock never runs out on a victim's right to seek redress so long as she remains a student, and she may retain rights on campus even after she leaves campus.
Most victims do not report right away so it is quite "normal" to have a delay between the incident and a report. In fact, delayed reporting is so common, the fact of a delay can be seen as supportive of a victim's credibility. This is not to suggest that a report made immediately is less credible, but a delayed report should never be cause for suspicion.
Many victims delay reporting simply because they lack full appreciation for whether an incident fits the definition of an offense. This is especially problematic when alcohol and drugs are involved because school policies often obfuscate the lines such that a victim is unsure whether she fits the definition of "incapacitated" or "incapable." Where unclear lines are drawn, victims often hesitate, ask others for advice, and then decline to make a report for fear the decision-makers will disagree with the victim's assessment of the incident even though the victim feels certain that what happened was a violation.
These are among the many important reasons victims should report incidents of gender-based violence as "civil rights" violations. Unlike generic student misconduct rules that incorporate murky standards and use onerous criminal law terms such as "non-consent" and "force," civil rights violations require proof only that an incident was "unwelcome." "Unwelcomeness" is a clearer and easier term to define and apply and it more effectively captures harmful incidents, especially those involving use of intoxicants, by limiting the scope of gray areas.
Probably not. If a victim knows her assailant and there is no dispute that a sex act occurred, which is often true about campus-based incidents, DNA testing is not necessary and could be harmful from an evidentiary perspective if, for example, a sexually active victim has DNA from other individuals in her body. Although a rape kit can sometimes find evidence of damage to the hymen and/or the posterior fourchette, such findings are usually ignored by school officials as well as juries and judges in the "real world" because the defense can easily claim such injuries are consistent with consensual sex. Even serious vaginal trauma is rarely helpful because the defense can claim the victim likes "rough sex." Rape kit exams rarely provide evidence of consequence in campus-based matters, yet because victims are pressured to submit to such exams their regular use has created an unfair expectation such that if a test is not done or nothing of consequence is found the fact-finders can point to those facts as reasons to discount the strength of the evidence. Moreover, routine reliance on rape kit testing tends to legitimize the idea that the word of a woman, alone, is inherently insufficient.
Although a rape kit can uncover some helpful information in rare cases, the benefits do not usually outweigh the risks and burdens. Moreover, because the medical nature of the process requires the victim to provide a "history" and answer questions that may be relevant to medical care (Are you taking any medications? Do you have a history of mental health problems?) but are entirely irrelevant to the legal questions in dispute, information is revealed that shouldn't be - and once revealed is likely to be shared with school officials as well as the offender and his lawyer.
Whether to submit to a rape kit examination should be decided by the victim after consultation with an attorney who has no affiliation with the school or any established advocacy or rape crisis organization. Established advocacy groups usually receive funding from sources that require them to encourage rape kit exams even when the test cannot possibly produce relevant and helpful information.
It can be difficult to know whether your rights are being violated because two different issues have to be examined. First, did the school correctly treat the incident as a civil rights violation as opposed to a generic sexual misconduct issue? This question is important because many schools have two different tracks and they provide very different forms of redress on campus. The Title IX track is always better. Second, did the school apply the rules correctly.
All gender-based harassment and violence is a civil rights issue and should be addressed under Title IX using exactly the same policies as are used to address harassment and violence based on race, national origin, etc. Some schools try to handle things like sexual assault and dating violence under generic misconduct policies which provide much less protections and impose greater legal burdens on victims compared to Title IX.
You will know that your rights are being violated if a school follows its generic misconduct policy - and not its civil rights policy - when responding to any form of gender-based violence or harassment.
Even if a school selects the correct path and proceeds under Title IX, it is then important to examine whether the standards and rules comport with federal civil rights laws. One common way that schools violate Title IX is by applying criminal law definitions such as "non-consent," and "force" to the assessment of whether a civil rights incident occurred. Title IX mandates that schools define incidents under civil rights standards which is important because the standards are easier to prove. For example, a civi rights violation (whether sexual or physical or stalking, etc.) requires proof only of "unwelcomeness." "Unwelcomeness" requires much less proof than "non-consent" or even "affirmative consent." Thus, if anything other than "unwelcomeness" is applied - whether under a civil rights process or a generic misconduct process - the school is in violation of Title IX.
Another commonly seen problem involves schools determining that "sexual misconduct" occurred, but because the incident did not involve "force" or "penetration" the incident did not rise to the level of a Title IX violation. This is wrong. An incident need not involve force or penetration to constitute a civil rights offense. Many schools similarly rely on a victim's intoxication or lack of memory from rape drugs to rule that the evidence is insufficient to prove that an offense occurred. Again, this is wrong. A victim need not have a specific memory of everything that happened to establish that a civil rights violation occurred. To the contrary, the absence of memory is strong proof that drugs were used to induce compliance and amnesia. If a school determines that a victim's inability to recall certain information is justification for ruling in favor of an offender, or ruling that only a less serious offense has been established, this would be grounds to file an external complaint with the Office for Civil Rights at the Department of Education and/or analogous state civil rights enforcement agency. Such a complaint could allege that a school should have explicit policies in place such that an inference of drugging will be drawn when a victim reports symptoms commonly associated with the ingestion of rape drugs. Proof of drugging through blood or urine tests is not required, nor should a negative finding be considered proof that drugs were not used. Rape drugs are so pervasive that all schools should have policies in place ensuring that the use of such drugs will be inferred from behavior alone and that victims will be provided with access to technology that allows drug testing on hair because rape drugs can be identified in hair even many months after an incident takes place. Simply having a policy in place that allows for hair testing and provides that behavioral symptoms alone will suffice to prove drugging will reduce incidence rates.
Even if a school correctly chooses to handle a matter under Title IX and has the right written standards in place as a matter of policy and utilizes those standards in a particular case, it is then important to determine whether the standards were correctly applied. For example, schools are mandated to apply a "preponderance of the evidence" standard when weighing statements and other information to determine whether the evidence is sufficient to merit sanctions against an offender. Under the preponderance standard, if a victim's report of an incident is slightly more credible than an offender's denial, the preponderance rule requires the school to rule against the offender. Some schools have written policies stating that they apply the preponderance standard, and they find victims credible, but then they rule in favor of offenders on the grounds that the victims were not credible enough. This is a clear violation of Title IX because it is an improper application of the preponderance rule to find a victim credible and then rule in favor of her offender.
Knowing whether a school is complying with Title IX can be difficult to determine but the key legal mandates require schools to provide a "prompt," "equitable" and "effective" response. Thus, virtually anything a school does that is not prompt, equitable or effective is grounds for a victim (or women as a class) to file a complaint with the Office for Civil Rights at the Department of Education and/or with an equivalent state civil rights oversight agency. State agencies can be a better option because state law sometimes requires schools to do even more to protect women's civil rights than that which is required under Title IX. A victim can file complaints simultaneously with both federal and state agencies. When a school fails to provide prompt, equitable and effective redress in connection with medical or counseling care, or with regard to forensic examinations at a school-affiliated hospital or by a school-affiliated SANE nurse, etc., a victim can also file a complaint with the Office for Civil Rights at the Department of Health and Human Services.
School officials may not ask about a victim's past sexual activities because that information is never relevant to an assessment of what happened on a particular date at a particular time. Even even if it were possible to come up with an argument for why past sexual conduct could be relevant in a hypothetical case, such a rule would be improper because it would require women to take into account in their lives the risk that being sexually active could be used as evidence against them in the future. This would restrain women's sexual freedom by effectively punishing them for engaging in constitutionally protected activity.
Moreover, a school proceeding is not a criminal case, which means officials have much more discretion not to consider private information even if it is relevant.
School officials are, however, not only authorized but also mandated to ask about and to consider a perpetrator's past sexual harassment and violence against women on campus because a school must determine whether a "hostile environment" exists - and the fact that an offender has engaged in past similar harmful behavior is relevant to that assessment.
Note that while it may seem unfair at first blush to forbid consideration of a victim's past conduct while allowing consideration of a perpetrator's past conduct, the seeming disparity is appropriate because the perpetrator's past offensive actions are both similar to the incident in dispute and harmful to others while the victim's past actions, even if they involved sexual body parts, are neither similar nor harmful.
Any form of retaliation or intimidation in the aftermath of a report is forbidden under Title IX and can be the basis for a complaint separate and apart from the underlying Title IX incident. Retaliation is forbidden by all persons including the offender, students, teachers, school officials, coaches, etc., as well as the offender's friends, family and attorney, whether on campus or not. A victim need not know the identity of the source of the retaliation to file a complaint.
Even if the underlying incident is not proved or is deemed something less than a Title IX violation, retaliation is still actionable under Title IX as its own civil rights violation.
Employees of the school who are thwarted in their efforts to enforce Title IX can file their own complaints under Title IX. Most people think an employee can only file a complaint under Title VII because Title VII covers discrimination in employment, but in fact employees are protected under Title IX, too, on matters related to retaliation. An employee who experiences her own discrimination or harassment must seek redress under Title VII but if she experiences retaliation in her efforts to help students enforce their rights, he or she can and should file a retaliation complaint under Title IX. This is important because Title VII imposes more barriers on employees and the grievance process is more difficult to navigate compared to Title IX. Attorney Wendy Murphy filed a landmark case against Yale University under this theory in 2012.
Most bullying that occurs "on the basis of sex," is in fact sexual harassment and should be addressed under Title IX. Many schools coerce victims of sex-based harassment to frame the harm as "bullying" because it allows them to respond without complying with civil rights laws. This is illegal according to the Department of Education's 2010 "Dear Colleague Letter" which makes clear that the underlying behavior, and not the label used to describe it, dictates whether a school is mandated to respond to bullying under civil rights laws such as Title IX. The following law review article explains how anti-bullying laws undermine the effectiveness of Title IX. Murphy, W., Sexual Harassment and Title IX: What's Bullying Got To Do With It? Vol 37 New England Journal on Criminal and Civil Confinement, 305-324 (2011)
No. Schools are mandated to respond irrespective of the criminal justice system's involvement. If a school official tells a victim she must choose between the two options, that would be a clear Title IX violation. While a short delay to coordinate investigative efforts between "real world" law enforcement officials and campus officials is acceptable, schools generally may not delay their response more than 60 days, nor may they delay their response at all on the grounds that they were waiting for the "real world" investigation and prosecution to be resolved.
You have a constitutionally-protected right to speak about what happened. School officials have no authority to forbid you tell anyone about an incident, nor can they punish you for speaking out. School officials do have authority to require confidentiality regarding certain information (e.g., an offender's HIV status) if it was provided to the victim by the school or law enforcement officials in the "real world" and the victim had no independent knowledge of the information. When legitimately confidential information is relevant to a victim's medical, legal or counseling needs, she can and should reveal it as necessary to protect those interests.
Victims have a right to sue schools and perpetrators for damages caused by campus-based harassment and violence. In connection that lawsuit they can "settle" the case for money in exchange for dismissing the suit. But it is illegal for a victim to take money in exchange for not participating in campus-based redress proceedings or not testifying in a "real world" criminal court. Indeed, such quid pro quo deals can be prosecuted as felonies in criminal court because paying a victim not to testify is a form of witness intimidation and obstruction of justice.
Victims can and should file lawsuits for money in addition to seeking justice on campus and in criminal court. They are never required to choose between options and they should never be asked to give up their rights on campus or in criminal court in exchange for money or anything else because, among other things, this enables wealthy perpetrators to escape responsibility for their actions while perpetrators of lesser means face incarceration because they cannot afford to pay off their victims. In general, such an approach to addressing violence against women on campus and in larger society produces racist and other unfair results that promote systemic corruption, inhibit the effectiveness of prevention programs and effectively decriminalize violence against women.
No. A victim has superior legal status and more rights because she is the one alleging a violation of civil rights. The perpetrator may have some rights, as promised to him by the school, but his rights are much weaker and are not rooted in civil rights and constitutional principles.
Some argue that a perpetrator has "due process" rights and that such rights are akin to those that apply in the "real world" criminal justice system. This is wrong. Constitutional due process rights only apply when the government is threatening to take away a person's liberty. There is no liberty at stake on campus as schools are not the government.
A perpetrator can claim "due process" rights only insofar as the school has promised him due process rights, and even then, many courts do not refer to this as a "due process" problem. Instead, they say simply that if a school promises certain procedural protections for perpetrators, they must "substantially" comply with their promise. This is more like a contract than a constitutional issue.
Private universities in particular have no obligation whatsoever to provide any form of "due process" to perpetrators but they are mandated to protect victims' civil rights, which requires compliance with due process simply because the civil rights of victims are constitutionally protected. Private universities have a paramount obligation to comply with civil rights laws in exchange for receiving federal funds.
This is not to say schools should be unfair to perpetrators. Fairness is important, but it is not on the same moral or legal plane as protecting all students' civil rights to safety and full equality in education.
Compared to private schools, public schools have an obligation to ensure fair treatment for perpetrators because public schools are seen as part of the government. But even public schools cannot elevate the offender's status such that his rights are seen as equal to those of the victim under civil rights laws.
The SaVE Act (also known as the "Clery Act" and the new campus section of the "VAWA") is a terrible new law that took effect March 7, 2014. It allows or requires schools to subject the redress of violence against women to worse legal standards than ever before; far worse than the redress of violence against any other protected class category such as race or national origin.
The SaVE Act enables schools to have two tracks of response to gender-based violence. One track applies the ideal standards from Title IX (prompt, equitable and effective) while SaVE allows weaker and much less protective standards (for example, "prompt" can mean years instead of weeks, "fair" is allowed instead of "equitable" and the school's response need not be "effective.")
When SaVE was first proposed in April 2011 it was supported by many women's and victims' groups because they were told it would "codify" an excellent "Dear Colleague Letter" (DCL) that had been issued days earlier by the Department of Education regarding violence against women on campus. The DCL laid out the steps schools must take in response to violence against women and it would have been great if Congress had taken steps to "codify" it because a federal statute trumps a "letter" and statutes are more enforceable. But SaVE was not intended to "codify" the DCL, it was intended to overturn it, and naive (though seemingly sincere) advocates such as Laura Dunn, Dan Carter, Nancy Cantalupo and the "Know Your IX" group lacked sufficient understanding of how and why SaVE would weaken protections for women on campus. To make matters worse, advocates were told to support SaVE by people at Harvard who knew SaVE was a bad law and were using the influence of the Harvard brand to manipulate advocates to believe that SaVE would be good for women. Those same people from Harvard were involved in actions that led Harvard Law School to be investigated by OCR in the fall of 2010, for the first time ever, for violating women's rights under Title IX. Those same people from Harvard were involved in actions that caused Harvard Law School to be investigated by OCR in the fall of 2010, for the first time ever, for violating women's rights under Title IX. Those very same people from Harvard then contacted students at Yale after they learned Harvard was in trouble with OCR. They advised the Yale students to file an OCR complaint against Yale without telling the students that Harvard was already in trouble with OCR. The people from Harvard also urged the Yale students to support the SaVE Act without telling them the myriad ways SaVE would subjugate women and prevent equitable redress on campus for all forms of violence against women.
Lots of advocacy groups were attracted to the new "training and education" mandates in SaVE because it meant new money would be available to pay advocates to "teach" students about gender-based violence. Education programs are fine, but not as a trade-off for laws that expressly weaken women's rights on campus and render violence against women a second-class harm.
A few good provisions in the initial iteration of SaVE (such as mandating the preponderance of evidence standard) were later removed, which led to some objections from women's and victims' groups but many advocates continued to support SaVE either because they were given money to start a new non-profit, or were given new jobs and positions of influence. Some advocates supported SaVE simply because they were being propped up as heroes, and led to believe their work was making a difference, etc.
To be sure, the voices of students are important, but schools respond to lawsuits and federal investigations - not students - especially when the students aren't even protesting at any particular schools and are, instead, doing relatively meaningless busy work. The various advocates who claim to be responsible for calling attention to the problem of campus sexual assault did very little by way of protesting at specific schools or complaining about particular policies. This is because they could not responsibly complain about a school's policy being substandard compared to Title IX, while also supporting the SaVE Act. So they did things like build distracting websites and host panel discussions on silly ideas like "bystander intervention."
As SaVE was making its way swiftly through Congress, some advocates recanted their support after good parts of the bill were removed and they realized they had been duped into supporting a dangerous law. But then SaVE was tacked onto the VAWA Reauthorization Act which is a big funding bill so most groups went silent because they needed the VAWA money.
The problem of victims' and women's groups being co-opted with promises of funding for "training and education" programs is not new, but the enactment of SaVE is a new low in the fight for women's equality because it is the first time since 1972 that women's civil rights have been weakened by Congress. More disturbing is that SaVE was enacted with the full consent of not only a President who claims to care about women's equality, but also women's groups (including the National Women's Law Center) that purport to be fighting for women's safety and equality in education every day in courts around the nation.
A lawsuit aimed at overturning SaVE was written by Attorney Wendy Murphy and Bernice Sandler, Ed.D. (Sandler is the "Godmother of Title IX" and calls Murphy the "Goddaughter of Title IX") and was approved to proceed in D.C. Federal Court on March 6, 2014, the day before SaVE took effect. The lawsuit implicates Harvard Law School and the University of Virginia and alleges that Congress had no authority to enact a law subjecting the redress of violence against women on campus to worse legal standards compared to the redress of violence on the basis of other protected class categories such as race and national origin. The suit alleges that SaVE violates women's equal protection and due process rights and was filed by D.C. attorney James Marsh. After it was approved by the court to proceed Harvard revised its gender-based violence policies and was the first school in the nation to reject SaVE.
Very bad. And like the SaVE Act, this proposed new law, known as CASA, is supported by Democrats and Republicans alike, with many female members of Congress in the lead. (Gillebrand, McCaskill) alongside Democrats who claim to support women's equality (Lahey, Casey) as well as Republicans who do not. (Grassley).
Murphy, W., Sexual Harassment and Title IX: What's Bullying Got To Do With It? Vol. 37 New England Journal on Criminal and Civil Confinement, 305-324 (2011).
No, it's a terrible idea and advocates should stop supporting it.
It isn't that being more verbal and open about sexual activities is a bad thing. Everyone should be teaching and encouraging more openness about sex in general. But "affirmative consent" as a rule by which campuses determine whether a civil rights violation occurred prevents equitable and effective redress for victims because "affirmative consent" is a criminal law term rather than a civil rights term, and it imposes a more onerous burden on victims.
Simply put, when "affirmative consent" is the standard, the mistaken mindset of the offender is given substantial weight such that a victim's 100% lack of consent is offset by the weight accorded her attacker's "mistaken belief" about her "affirmative consent." Under a civil rights analysis, only "unwelcomeness" need be present for an offense to be established and "unwelcomeness" is more respectful of women's autonomy and bodily integrity because the victim's subjective experience can not be offset by another person's error. This is not to say the offender's state of mind is never relevant, but rather, that it cannot trump the victim's state of mind for purposes of establishing that a civi rights offense occurred. Moreover, an offender can just as easily lie about whether he had "affirmative consent" as not affirmative consent and the problem of offenders lying in this regard is significant. "Unwelcomeness" is not only required under Title IX, it is also a standard that more effectively protects against offenders' lies because making a mistake (or even boldly lying) about "unwelcomeness" is not a defense.
It's important to know the motivations behind student and other advocacy groups before trusting them to provide appropriate advice and guidance around Title IX or any civil rights issue involving violence against women. Any person or group that supported the SaVE Act and has not openly retracted that support should not be trusted. The "Know Your IX" group aggressively supported SaVE, as did the "Victims' Rights Law Center," RAINN, PaVE, AAUW, Laura Dunn, Dan Carter and Nancy Cantalupo. Many other individuals also supported SaVE and are worthy of skepticism simply because supporting SaVE is a strong indication that a person or group does not believe in women's equality as an essential philosophical baseline principle.
Chances are any group that receives government funding (which is most rape crisis and battered women's centers) and regularly provides services to victims from a nearby campus, is providing substandard advice and may well be protecting the school's interests. It's hard to say for sure whether a particular rape crisis center is not trustworthy but one surefire way to know whether a group is committed to women's safety and equality is to determine whether they receive money from the government and or from the SaVE Act/Clery Act portion of the VAWA. It is also important to ask whether they have any type of formal or informal relationship with nearby schools because many of them have contracts to provide advisory and advocacy services to victims, which means they have a financial incentive to side with the school to avoid losing the money from that contract.
As with off-campus "advisors," rape crisis centers and advocacy groups, "advisors" on campus are problematic if the goal is to ensure full compliance with civil rights laws in response to violence against women.
"Advisors" have implicit biases that favor schools and are not held accountable for ensuring that a victim's rights are enforced, nor are they obligated to report incidents or even make sure that appropriate campus officials are aware of incidents when they occur.
Advisors will seem supportive but many undertake covertly to persuade victims to "put it behind them" and to "focus on their studies." This usually causes even more trauma to the victim because unresolved traumatic violence can create tremendous internal turmoil for the victim.
Victims and families are usually inclined in the first instance to trust school officials and advisors because they have no reason to believe school officials will protect perpetrators or not act in the best interests of victims, but they often feel betrayed when they realize they were misled or that a victim's rights were ignored or violated. That betrayal can lead to serious emotional trauma and is the kind of harm that can support a substantial money damages award in a lawsuit against a school for violating Title IX. An important study on the issue of institutional betrayal trauma can be found here.
Easy. Simply send a request to firstname.lastname@example.org and we will try to connect you with a lawyer who will prioritize the victim's interests and ensure that a school responds to all forms of violence against women and girls only as a civil rights violation under Title IX.
There are myriad documented short and long term mental and physical health consequences of intimate partner violence (Coker, A. L., Williams, C. M., Follingstad, D. R., & Jordan, C. E., 2011), sexual assault (Martin, S. L., Macy, R. J., & Young, S. K., 2011), and sexual harassment (Pina, A. & Gannon ,T. A., 2012).
Sexual assault victimization experiences negatively affect women's
- perceptions of the academic climate (Cortina, Swan, S., Fitzgerald & Waldo, 1998);
- self-reported deterioration in academic performance and grades (van Roosmalen & McDaniel, 1998);
- actual decline in grades (Jordan, Combs, & Smith, 2014).
According to the AAUP Report on Campus Sexual Assault, consequences of sexual assault can extend beyond physical and psychological injury to include
- A decline in academic achievement:
- impaired ability to carry a normal course load;
- increased frequency of missing classes;
- reduced capacity to contribute to the campus community;
- increased likelihood of dropping courses, leaving school, or transferring.
- Campus sexual assault may harm an institution by
- undermining its educational mission by creating an unsafe and inhospitable learning environment;
- reflecting negatively on campus leaders' commitment to end campus violence;
- bringing scandal to the institution and its leaders when assaults receive media coverage;
- creating distrust among parents and alumni;
- resulting in fines if in violation of basic preventative measures;
- damaging institution's standing in the community.
Coker, A. L., Williams, C. M., Follingstad, D. R., & Jordan, C. E. (2011). Psychological, reproductive and maternal health, behavioral, and economic impact of intimate partner violence. In: Violence against women and children, Vol 1: Mapping the terrain. White, J. W. (Ed); Koss, M. P. (Ed); Kazdin, A. E. (Ed); Washington, DC, US: American Psychological Association, pp.265-284, 332
Cortina, L. M., Swan, S., Fitzgerald, L. F., &Waldo, C. (1998). Sexual harassment and assault: Chilling the climate for women in academia. Psychology of Women Quarterly, 22(3), 419-441.
Jordan, C. E., Combs, J. L., & Smith, G. T. (2014). An Exploration of Sexual Victimization and Academic Performance Among College Women. Trauma, Violence, & Abuse, published online Jan 22.
Martin, S. L., Macy, R. J., & Young, S. K. (2011). Health and economic consequences of sexual violence. In: Violence against women and children, Vol 1: Mapping the terrain. White, J. W. (Ed); Koss, M. P. (Ed); Kazdin, A. E. (Ed); Washington, DC, US: American Psychological Association, pp.173-195.
Pina, A., & Gannon, T. A. (2012). An overview of the literature on antecedents, perceptions and behavioural consequences of sexual harassment. Journal of Sexual Aggression, 18(2), 209-232.
van Roosmalen, E. & McDaniel, S. A. (1998). Sexual harassment in academia: A hazard to women's health. Women & Health, 28(2), 33-54.
A Sample High School Policy (PDF File)
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