The narrative about campus sexual assault in recent months has focused on the perception of an increased emphasis on due process and respondents’ rights. When taking into consideration: an increase in judicial findings on behalf of respondents; the change in the presidential administration to one that is grounded in a platform that specifically referenced campus due process rights of the accused; the final Obama administration OCR resolution in favor of a respondent complainant; and the controversy over proposed Georgia House Bill 51, it is easy to see where this perception comes from. A closer look, however, reveals that not much in the way of combating sexual assault has changed. Nonetheless, the perception of this change is having deleterious effects on campus policies and procedures.
Perhaps it is useful to tackle each of the contributing factors separately. Many organizations such as the Foundation for Individual Rights in Education (FIRE) and media outlets have accurately reported an increase in court findings for respondents who accuse their institutions of violating their due process rights. But this, too, must be taken within the overall context of campus sexual violence and the history of reported and unreported incidents. Many reports point to an increase in “reverse” lawsuits against institutions for violations of due process between 2014 and 2015. It stands to reason that with revised policies following the 2011 change in guidance around campus responsibilities under the Obama Administration and subsequent increased OCR staffing and attention to this issue, more cases of sexual violence were reported and adjudicated on campus than in previous years. It is also understandable that in a rush to get things right, campuses may have overcorrected and unintentionally violated their own policies in adjudicating these cases. Since many of these media reports do not include complementary data on how many respondent lawsuits were filed prior to the implementation of the Clery Act, which requires campus reporting on a variety of campus security and safety incidents, it is a comparison that is difficult to make. Further complicating the matter, the 2014 reauthorization of Violence Against Women Act (VAWA) created additional training and education requirements, which likely increased reporting to campus authorities, making a direct comparison even more difficult.
Many others point to the final Obama administration OCR resolution with Wesley College in favor of a respondent complainant. Again, when considering all of the open and resolved OCR investigations, it is hard to make a case that one finding for a respondent indicates a trend. What remains to be seen is how the new administration’s Office of Civil Rights will handle pending investigations, but without that information, a trend here is hard to argue.
Finally, the controversial Georgia House Bill 51 is another indicator utilized by many “due process” trend spotters. When compared to the totality of state legislation focused on campus sexual violence, however, the GA HB 51 is an outlier. In Texas alone this week, three separate House bills were proposed, and not one of them could be considered a respondent rights or due process focused bill. Beyond Texas, in Utah (HB 251) and Washington (SB 5764), bills providing for confidentiality for victim advocates have been proposed. Additional proposed legislation similar to the Georgia bill has been defeated in Utah. Legislation requiring transcript notations for students found responsible of sexual misconduct is also pending in Washington (SB 5764). These bills hardly indicate an increasing trend in due process or respondent centered legislation at the state level.
So if there is no “there” there, then why bother talking about it? Unfortunately for many campus student affairs professionals, the misperception about a shift in focus toward respondents has dire consequences. Most of these consequences stem from a sincere misunderstanding of the difference between equal and equitable. For instance, some campuses have been advised that they should invalidate Memoranda of Understanding (MOUs) signed with local rape crisis agencies if those agencies won’t also provide support to respondents in sexual violence cases. This is neither the mission nor the responsibility of most rape crisis agencies. To cut ties with a valuable community resource – relationships which have only recently begun to be strengthened at the encouragement of the Not Alone report from the Obama White House Task Force to Protect Students from Sexual Assault – is a disheartening development.
Other campuses, in an effort to provide equal (not equitable) services, are requiring specially trained campus victim’s rights advocacy offices to also provide respondent support services. This isn’t to say that providing respondent support services is a bad idea, but it is counterproductive to have advocates specifically trained for providing survivor support serving in that role. It speaks to a lack of understanding about the role of survivor advocates, and even more alarming, it puts survivors in danger of encountering respondents while seeking support services for themselves. This arrangement also makes no-contact orders nearly impossible to implement, essentially forcing both parties to seek services from the same personnel in the same office.
There is good news, however. Many campuses have been developing equitable processes and procedures that include respondents since the 2014 VAWA amendments to the Clery Act went into effect. Many of these campuses have position descriptions for respondent support staff, clear distinctions between advocacy offices and respondent support services, and have taken survivor safety into account. The institutions which have, albeit with good intentions, implemented some of these changes s to focus exclusively on due process concerns can learn a lot from the campuses with more established policies. Importantly, the campuses with the most promising practices in this area have worked with staff from across campus, including Title IX coordinators, campus advocates, conduct personnel, and Deans of Students when developing their well-balanced processes.
There are many campuses doing fantastic work that takes into account both the safety of the reporting parties as well as the due process rights of the respondents. Before believing the hype around the changing tide of campus sexual assault policies and legislation, the best approach is to rely on the expertise of those on campus already doing this work and seeking out the expertise of those institutions which have already traveled this road.