Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

The question about the relationship between sexual assault and Title IX on 
campus was posted on another list and it provoked an important discussion -- 

I am pasting it below 

the first response is from me, wendy murphy 

The law under Title IX is pretty clear that sexual assault is usually also 
sexual harassment.

title ix promises all students equal access to education by protecting 
against discrimination based on sex --

it is beyond dispute that sexual harassment is a form of sex discrimination.

sexual harassment, in turn, is defined as "severe" or "pervasive" conduct.

harassment is "pervasive" if it amounts to sex-based - (meaning sexual or 
gendered in nature) even non-physical conduct (such as words) that occurs 
often enough to interfere with a student's educational experience

harassment is "severe" if, even a one-time incident interferes with a 
student's educational experience.

while a one-time grab of the buttocks might not rise to the level of "severe" 
under title ix, the case law is very clear under title VII (the workplace 
analogue of Title IX) that most sexual assaults are per se "severe" for 
purposes of sexual harassment litigation.

moreover, rape is not only per se "severe", it is the most serious form of 
sexual harassment.

it is easily understood if you think about it in the racism context - even 
applying the idea to the recent events in Jena Lousiana.

When the white students hung nooses from a tree -- it was clearly an act of 
race-based harassment, even though it was a one-time incident, with no 
physicality involved.

If, instead of hanging nooses, these same white students grabbed black 
students and put the nooses around their necks -- not enough to cause death 
but iin a manner that restricted their freedom of movement and -- obviously 
-- represented a form of terroristic physical violence because of the 
symbolic nature of a noose as an expression of race-specific hatred, wouldn't 
it be silly to say the hanging of the noose was race-based harassment, but 
the physical use of the noose as a weapon in a physical attack was somehow 
NOT harassment because it rose to the level of a criminal attack?

I don't think I need to spell out how this is comparable to verbal or 
expressive harassment toward women and the actual physical act of sexual 
assault.

I am not stating here that llynching and sexual assault are the same for all 
purposes - and reasonable people disagree about the hierarchy of isms -- but 
it cannot seriously be argued, in my opinion, that sexual assault is not 
sexual harassment. 

finally -- i assume an academic voice on this list could make an even more 
important point about the systematic and political use of sexual assault as 
an expression of male violence against women -- and a means of social 
control, etc -- and I won't go there, but such an argument is legitimate and 
further supports the point here -- that title ix is designed to promote 
equality in education and it hardly makes sense that sexual violence, the act 
that most poignantly expresses and defines the type of male violence against 
women that causes class-based subjugation, was meant to be excluded from a 
law aimed at promoting sex equality.

Wendy Murphy


-----Original Message-----
From: Juli Parker 
<>
To: 

Sent: Fri, 21 Sep 2007 6:29 am
Subject: Re: Sexual assault/sexual harassment policy question

This is quite an interesting discussion and I guess i was thinking of it from 
the point of actually being able to prosecute/go through judicial in terms of 
my university. We have never, to my knowledge, in my 12 years at my school, 
had a student who was sexually assaulted also file sexual harassment charges. 
While it would be an interesting thing to do, would that be in the best 
interests of the victim in terms of her/his healing processs? Also, how would 
that piece end up protecting the woman under confidentiality. Furthermore, if 
one's sexual harassment officer is not schooled in the laws around sexual 
assault, could it be a case where the victim was believed under her sexual 
assault but not found in sexual harassment and then the perp could use that 
against her in any judicial/court cases?? 

Juli Parker

?all good questions -- and this came to a head when i filed an ocr complaint 
against harvard years back arguing that their "sexual assault" policy 
violated title ix b/c it didn't provide for "prompt and equitable" policies 
and procedures.? larry summers, president at the time, said publicly "sexual 
assault has nothing to do with title ix" -- a comment he quickly stopped 
saying when ocr took jurisdiction and forced harvard to rescind its policy -

not to digress and make this be about harvard -- my point is simply that 
there is a profound misunderstanding about the relationship between sexual 
assault and title ix.? and this was made clear to me when i pursued the case 
against harvard and literally could find nobody who had ever written on the 
subject in the manner i addressed in the brief i filed with ocr -

these days, it is more common to find pockets of attention to the issue -- 
but it is problematic, to be sure, for a host of reasons -- ranging from 
overtly political to the pragmatic points juli outlines below -

my personal opinion is that there is no discretion NOT to report sexual 
assault to the title ix liaison - which is a different question than "what 
should happen after that"?

the best advice i can give to deal with the lack of education and 
understanding is to look to workplace models for guidance.? they do not 
separate SH and SA -- nor can they under title VII.? On this point it is 
worth noting that all other forms of physical assaults based on potected 
class status are NOT separated into different categories of harassment vs. 
crime.? In other words -- if a disabled or gay student is verbally or 
physically harmed, they do not go to different types of resource centers -- 
they go to the place that deals with harm "based on" their status in the 
school community.? And from there, it might also turn out that they report 
somethign as a crime -- but the first step of internal redress is the place 
that deals with targeted harm. 

The odd thing about the different treatment for women is best illustrated by 
the following point:? if a gay woman is raped "based on" her sexuality -- she 
gets instant attention as a victim of targeted harm -- civil rights issues, 
etc.? But if that same woman is raped by the same person "based on" gender -- 
she gets bumped down in terms of appreciating the targeted nature of the 
violence as a civil rights issue.? This is just silly, in my opinion.

I can't see how having a student who was sexually assaulted tell a SH officer 
would harm the healing process - but maybe I'm not understanding that point. 

I teach students to report to all places -- and to seek advice from outside 
counsel before making a decision about what to do.? Obviously, the school has 
a bit of a conflict in encouraging more reporting of any harm on campus -- 
but while I respect the institutional concerns, I do not advise students to 
restrict their choices based on concerns about the school.? As a side note -- 
most of my friends say they would never send their kids to a school that 
claims super-low numbers of sexual assault and/or harassment - because we 
want our kids, especially our daughters, to go to schools that are open and 
honest as this is the best evidence that a school will take meaningful steps 
toward prevention - as opposed to cover-up.

Wendy

I would love to hear if other schools have approached this from the place 
that wendy describes. I'm really pointing to what actually occurs on college 
campuses, whether in theory we agree that sex. harassment is sexual assault. 
?
Juli Parker 

Wendy,
?
Training is not a simple problem on college campuses, it is a real? 
challenge, but your point is well-taken.? 
?
I'd recommend a unified investigation-based system for reporting of issues? 
of sensitivity, such as all forms of discrimination, hate acts, stalking,? 
SA/DV/violence which all coalesce around their commonality as civil rights? 
complaints, and on small campuses I'd unify it for students/faculty/staff.?? 
On 
large campuses, that isn't workable, and you need separate processes for? 
students 
and fac/staff.? But, you still need the processes to communicate? when the 
complainant/respondent are from different cohorts (as in a? 
faculty-on-student 
assault).
?
My Whitepaper on successful investigation models is posted at 
_http://www.ncherm.org/pdfs/2007-whitepaper.pdf_ ;
(http://www.ncherm.org/pdfs/2007-whitepaper.pdf) 
?
Regards,

Brett A. Sokolow, JD
Special Advisor to? the United States Air Force Academy
Special Counsel to the President, Hobart? and William Smith Colleges
Special Counsel for AOD Issues, Barton County? Community College
Special Counsel for Student Conduct Issues, Warren Wilson? College
Special Counsel to the Dean of Students, Hendrix? College
?








 


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