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

 I would add to brett's excellent information that if a school official 
learns of a pattern or that even with an anonymous report, that an individual 
who has been accused in a current report has been named in other reports 
--whether anonymous or not, the official has an obligation to inform all 
victims associated with those other reports, whether they had expressed a 
willingness to file a complaint in the past or not.? A victim might feel 
different about filing a complaint if she learns that others have suffered 
the same harm by the same actor(s) and there is no reason they couldn't 
change their? mind.

Also -- in determining whether your response is "prompt and equitable" it is 
important to compare the approach you take when responding to a sexual 
assault based on race, ethnicity, religion, sexual orientation, disability, 
etc --- because "equitable" means both inherently fair and fair vis a vis 
other similar harms - 

so sexual assault "based on gender" must be handled the same way you handle 
sexual assault "based on" any other status -- 

Wendy Murphy






 


 

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Sent: Sat, 20 Oct 2007 9:05 am
Subject: SAPC Digest, Vol 845, Issue 1










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Today's Topics:

   1. Fw: Limits to Confidentiality (Aline Jesus Rafi)
   2. "Gray Rape" posting
      (Ben Atherton-Zeman - Feminist,   Actor and Husband)


----------------------------------------------------------------------

Message: 1
Date: Fri, 19 Oct 2007 13:51:29 -0400
From: "Aline Jesus Rafi" 
<>
Subject: Fw: Limits to Confidentiality
To: 
<>
Message-ID: 
<>
Content-Type: text/plain;   charset="UTF-8"

Thank you so much to Brett A. Sokolow, JD for sending me the information 
below.

If anyone else has additional information please let me know.
-------------------------------------------------------
Aline Jesus Rafi, MA
Health Educator
Sexual Assault Prevention Education and Response
Emory University Student Health Services
1525 Clifton Road
Atlanta, GA 30322
Phone: 404-727-1514
Fax: 404-727-9159
Email: 

----- Original Message ----- 
From: 

 
To: 

 
Sent: Thursday, October 18, 2007 4:37 PM
Subject: Re: Limits to Confidentiality


Hi Aline,

Hope this helps:

BEST PRACTICES:  WHAT DO YOU DO WHEN? A STUDENT REPORTS A SEXUAL ASSAULT BUT 
THEN ASKS THAT NO ACTION BE TAKEN?

 

This is a complex issue that is informed by two federal laws, student affairs 
best practices, good victim services, the Department of Education, and 
negligence law.  While no one perspective dictates how we address reluctant 
victim situations, taken together, a cohesive approach can be created.  

 

Clery First

 

Let?s start with the Clery Act, and its role in this issue.  The Clery Act is 
an 
absurd law, in its execution.  It tells colleges to collect crime reports 
from 
campus security authorities, which it defines as any institutional official 
who 
has significant responsibility for student and campus activities.  It then 
splits hairs to tell us this will include some faculty but not others.  It 
includes student services personnel, but not the support staff talking with 
the 
student in the waiting room while they wait to see the Dean.  It does not 
include counselors, but may include a non-counselor administrator who runs 
the 
counseling center.  These are not reasonable hairs to split on a college 
campus 
if you are interested in accurate compliance.  Responsibilities of college 
employees are constantly changing.  A faculty member who assumes a role as a 
student organization advisor mid-year may not receive training on reporting 
until the following year, depending on your training schedu
 le.  Who is on the list and who is not on the list of mandated reporters for 
Clery is a moving target that is not easy to hit.  It is just easier (and 
very 
reasonable) to tell ALL institutional employees that it is part of their job 
to 
report all crimes about which they become aware within 24 hours of becoming 
aware.  That way, nothing slips through the cracks.  This includes reports of 
sexual assault made in confidence, because nothing in the Clery Act requires 
the 
revelation of personally identifiable information.  Counselors, clergy and 
medical services personnel can complete a report without violating their 
professional ethics.  

 

Once you have created an all-employee reporting requirement, employees can be 
trained that when a student reports sexual assault, they cannot promise 
confidentiality, and need to make that clear to the student who comes to them 
(unless of course, you are among the limited number of university employees 
who 
can actually promise statutorily or ethically-conferred confidentiality). 

 

Best Practices Tip?Explain This to a Victim as the Difference Between 
Confidentiality and Privacy:

 

?Thank you for coming to talk to me about such a serious issue.  I want you 
to 
know that we are going to do all we can to help you.  I need to make clear 
that 
I am not someone who is able to maintain the confidentiality of what you 
share 
with me.  I can and will protect your privacy, and will only share your 
information on a need-to-know basis with a small group of key administrators. 
 
We will make every effort to respect your wishes as far as how we respond to 
your report.  If you desire a confidential conversation, I can take you to 
the 
counseling center, or help you to set up a meeting with one of our campus 
staff 
members who is a confidential resource.?

 

Acting on the Reports You Receive

 

A predicate to liability under Title IX is notice to campus official(s) who 
have 
remedial authority to address gender-based discrimination (in any of its 
forms, 
including sexual violence).  Let?s assume for purposes of this article that 
you 
are such an official.  Once you have established a campus-wide crime 
reporting 
network as discussed above, you will hear more often about campus crime 
generally, and you probably will receive more sexual assault reports, 
specifically.  Not all of these reports will include personally identifiable 
information, but some will.  Once you receive a report, various laws govern 
your 
response and you MAY have to provide some or all of the following.  

 

After each item listed below, the law that mandates or influences it is 
identified:

 

?       Crime statistic (Clery)

?       Interim suspension (tort law ? negligence)

?       Timely warning (Clery)

?       No contact order (student affairs best practice)

?       Investigation (Title IX)

?       A prompt and equitable resolution (Title IX)

?       A hearing (state/federal due process or contract law)

?       Sanctions (Title IX, tort law ? negligence, due process)

o      To bring an end to the discriminatory conduct; and

o      To take steps reasonably calculated to prevent the reoccurrence of the 
discriminatory conduct

?       Remedies (Title IX)

o      To restore the victim, as much as possible, to his/her pre-deprivation 
status and/or undo the effects on the victim of the gender-based 
discrimination 
they have experienced.

?       Notice of outcome (Clery Act)

?       Appeals (contract law and Title IX)

?       Post-sanction enforcement (Title IX, tort law ? negligence)

?       Follow-up to determine if remedies are effective (Title IX)

 

Upon receiving a report, whether anonymous or not, you will need to determine 
if 
the alleged victim wishes to make a complaint.  If so, you will follow the 
proper procedures on your campus for making a complaint and begin the 
investigation process.  If not, you will need to find out why not.  Perhaps 
the 
assault occurred long ago, or off-campus. Perhaps the victim is going to the 
police to pursue criminal prosecution. While you may be able to determine 
directly why no formal action is requested by the victim, you may have to go 
through the employee who initially received the report before it was passed 
along to you.  They may be able to dialogue with the victim to find out 
reasons 
why the victim wants no action taken.  I think you or the employee who is in 
contact with the victim should try to problem-solve with him/her any 
impediments 
to filing a complaint.

 

Best Practices Tip:  Convincing a Reluctant Victim

 

I think we should make a good faith effort to persuade (not pressure) a 
victim 
to make a formal complaint.  Often, victims are reticent to pursue a campus 
hearing because they fear for their privacy, they blame themselves, and they 
don?t want to subject themselves to a process they fear will be a secondary 
victimization.  I think we can overcome some of these reasons for hesitation. 
 
We can make sure that the victim understands how well-suited the campus 
conduct 
process is to meeting the needs of many victims.  I think we should explain 
that 
the campus process is private, that resolution is quick (can we shoot for 30 
days?), that we use a standard of proof (more likely than not) that makes it 
twice as easy to prevail in a campus hearing than in a criminal trial, that 
we 
provide victim-friendly accommodations, such as the right to an advisor, to 
testify from behind a screen or by closed-circuit, and that we actively 
prohibit 
evidence of a student?s irrelevant sexual history or
  character.  I also think we need to be clear that we are not going to throw 
the book at a victim for his/her own policy violations, if they decide to 
make a 
complaint.  It is also worth it to explain to a victim that perpetrators 
recidivate, and if left unchecked, they may assault again and are likely to 
make 
someone else feel the way they now feel.  Their action in filing a complaint 
can 
help to prevent future victimization, and I think we should at least get them 
thinking about their duty to other potential victims and members of their 
community.  Once we have said our piece, though, I think we need to back off 
and 
let them choose for themselves what is in their best interests.

 


The Requirements of Title IX

 

If you are not successful in encouraging the victim, directly or indirectly, 
to 
file a formal complaint, your legal duties are not over.  In fact, they may 
just 
be starting.  Once you have actual notice under Title IX, your duty to 
investigate the report is absolute.  There are no exceptions.  Yet, 
investigation is a very broad term, and may indicate merely a preliminary 
inquiry, or it may include a much more elaborate inquisition into the facts.  
With an anonymous report, your ability to investigate is more limited.  You 
would satisfy your legal duties of due diligence by checking the report 
against 
other recent anonymous and formal reports, to determine if a trend or pattern 
may be apparent.  If so, you might decide to take some action based on the 
composition of assaults, rather than on just the one anonymous report you 
have 
received.  You may even gain information on repeat perpetrations in a single 
location, and this may allow you to target a high-risk population or loca
 tion with enhanced enforcement, patrols, lighting, cameras, timely warnings, 
etc.   

 

In addition to the duty to investigate, you may have a duty to attempt some 
form 
of remedial response, even to an anonymous report.  For example, if you learn 
of 
multiple perpetrations by the same individual (anonymous reports sometimes 
include the name of an alleged perpetrator or enough detail for you to figure 
out who the alleged perpetrator is), or multiple perpetrations at the same 
event, you may decide to alert the alleged victim to this information to see 
if 
this makes him/her more willing to file a formal complaint, or you may decide 
to 
launch an investigation into the campus event that produced multiple reports 
(such as a party at which multiple drinks were laced with GHB).

 

Where a victim comes to you to make the report directly, your duty to 
investigate is the same, but is enhanced by the additional information you 
may 
have by receiving the report directly rather than through a third-party.  
Assume 
that the alleged victim, as with the anonymous victim, asks that you take no 
action.   At this point, one of the purposes of the investigation is to allow 
you to determine whether you can honor the victim?s wishes.  OCR tells us 
that 
we should make every effort to do so, but not at the expense of compromising 
our 
duty to provide a prompt and equitable remedy under Title IX.  

 

Negligence

 

Tort law plays a role here too, as we must make a determination whether the 
report gives us notice of foreseeable future harm.  If so, our legal duty is 
to 
act to warn (and perhaps protect) foreseeable victims from that known 
potential 
for harm.  If, as a result of our investigation, we reasonably believe that 
there is no continuing threat of harm to the alleged victim, or to any member 
of 
our community, we have no legal obligation to pursue the allegation through a 
hearing.  We may, however, have other equitable duties of remedy, such as a 
need 
to provide an education program to the community, or to a target population, 
to 
post prominent bulletin board information about the issue, or to give a clear 
warning without singling out any particular individual by enlisting a coach, 
RA, 
greek advisor or student organization advisor to raise the issue indirectly 
at 
an appropriate meeting.

 

If you decide not to have a hearing,  it would be wise at such a point to 
have 
the alleged victim sign a statement making it clear that s/he has requested 
that 
you take no action, and that they understand they are preventing you from 
taking 
future action by failing to cooperate in the investigation.  If they ever 
make a 
Title IX claim against the institution, you attorneys can use this waiver to 
help them to claim an estoppel defense (it is unfair for a victim to sue you 
for 
not taking action when you decided not to take action at his/her request and 
instigation).  Of course, any waiver should make clear that if the alleged 
victim ever changes his/her mind, you stand ready to re-open the 
investigation, 
to the extent practical and possible.

 

Where the results of the investigation do not give you reasonable assurance 
as 
to the safety of your community, you have a duty to act irrespective of the 
victim?s wishes.  You cannot force them to participate in a hearing, but you 
should initiate one with the institution as complainant, and you may use 
written 
statements of the victim, statements by the victim to witnesses, police and 
medical records as needed in lieu of participation by the alleged victim as 
complainant.  

 

Each complaint is governed by the principle that you take it as far as you 
need 
to.  If you commence a preliminary inquiry, and that inquiry leads to further 
suspicion, you will broaden the inquiry to a full-fledged investigation.  An 
investigation itself, even one that clears an accused student, is a response 
under Title IX.  It may be all that is required, depending on the findings.  
If 
you are challenged under Title IX by a lawsuit or OCR investigation, you may 
be 
accused of deliberate indifference.  One of the best ways to prove that you 
were 
not deliberately indifferent is to show that a comprehensive civil rights 
investigation was completed and documented.  

 

All information offered is the opinion of the author, and is not given as 
legal 
advice.  Reliance on this information is at the sole risk of the reader.  


Brett A. Sokolow, JD
Special Advisor to the United States Air Force Academy
Special Counsel to the VP for Student Affairs, Saint Mary's College (IN)
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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Message: 2
Date: Fri, 19 Oct 2007 20:18:05 -0400
From: "Ben Atherton-Zeman - Feminist,   Actor and Husband"
    
<>
Subject: "Gray Rape" posting
To: 
<>
Message-ID: 
<>
Content-Type: text/plain;   charset="iso-8859-1"

Hello to Gillian Greensite - thanks so much for your posting. 

You said: "I have been doing rape prevention education in a college setting 
for 
28 years and yes, I have observed the use, or mis-use of the term 
rape to include those situations that are clearly not. And yes, this 
is perpetuated by many in the anti-rape movement."

Do you really think that "many" in the anti-rape movement mis-use the term in 
this way?  Can you elaborate?

thanks!  

Until the violence stops, Ben.  

Ben Atherton-Zeman, Acton MA USA
Actor, Comedian, Feminist and Husband
Presenting a One-Man Play: "Voices of Men," www.voicesofmen.org (video clips 
take a second to load)
Booking information: 978-263-3254

Quote of the Month, October 2007, National Domestic Violence Awareness Month:

"I said 'Excuse me, I OWE you a job??' He said, 'Yeah, 'cause you wouldn't 
have 
that job if it wasn't for me.'

Typical abuser thinking. I had started and graduated college, had run a 
non-profit for 4 years, and was the principal author of the child abduction 
statute, amongst other things, but I got the job because of him? 

I replied 'They didn't hire me because you beat me, they hired me because of 
what I've done since then.'" - Jan Russell


------------------------------

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