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

I agree with most of Wendy's suggestions, but want to explore two of them more, because we have studied this extensively.  First, I think there is merit two a two-tier policy when one is not a lesser offense (as in the current UVA model which is problematic for exactly the reason cited by Wendy), but only they describe different behaviors for which similar sanctions could result.  The reason why is that if we list our sanctions as required by the Clery Act as warning through expulsion, victims have reported they found it a disincentive to reporting and pursuing a complaint on a rape that they could go through the whole process only to have it result in a warning or probation.  Thus, I like the two-tiers to send the message that separation is going to result from a penetration-based offense (and, yes, Wendy, it may result from a non-penetration-based offense too).  The problem with non-penetration offenses is the attempt some schools make to assert that lesser offenses = lesser trauma, and Wendy's right that you can't make those assertions generally.  Yet, sexual assault covers the range of a pat on the rear to rape, and so in a tiered policy, can appear to cover a lesser offense when it really covers a wider range.  For years campuses have tried to bury sexual assault in sexual harassment codes as well, and that has not served victims well.  We've attempted to address all this in our model, which uses the umbrella term sexual misconduct, under which there are four offenses, none of which are lesser than the others, but all of which define specific (occasionally overlapping behaviors).  The four are sexual harassment, non-consensual sexual intercourse, non-consensual contact, and sexual exploitation (for things like the Tyler Clementi case).  So, we really have a four-part policy (five if you count retaliation as distinct from sexual harassment), and its actually the term tier that's problematic, as it implies a hierarchy that isn't there (and shouldn't be).  The model is not exactly simple (though it isn't uselessly complex either), because when we focus-group simple policies victims repeatedly fail to self identify based on generic formulations, and to say they are more inclined to report when a policy speaks directly to their specific experience.  There is no perfect policy, but I suggest student input in the creation, victim input in the creation, and focus-grouping the draft in parts and as a whole with different groups, to see how it is perceived. 

 

Regards,
Brett A. Sokolow
Brett A. Sokolow, J.D.
Attorney-At-Law


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Special Counsel, Southwestern Michigan College
Special Counsel, the Community College of Allegheny County
Special Advisor, Vassar College
Special Advisor, Henry Ford Community College

 

In a message dated 12/20/2010 2:19:33 P.M. Eastern Standard Time, writes:

Adale 

I agree with Mahri and strongly urge you not to use "intentional" and "unintentional" for many reasons.

First - rape is not a specific intent crime.  It is defined by the lack of consent which is exclusively concerned with ONLY the mindset of the victim.  To 

indulge an offender state of mind is to suggest that the mistaken mindset of an offender is more important than the ACTUAL mindset of the

recipient of harm.  This "trade-off" view, in turn, implies that women do not enjoy 100% authority over their bodies - and that they ONLY have

a right to decide what happens TO THE EXTENT their choice is not offset by a man's "mistake'.

Second - It dangerously opens the door to impunity for offenders who hunt for incapacitated victims.  Any case where a victim is drunk

is potentially a case where the perpetrator escapes responsibility by simply arguing that her drinking made her sexually aggressive - 

thus, he THOUGH she was consenting.  The rule should be clear that incapacitation is a VULNERABILITY for a victim - not a LIABILITY.

And anyone who takes advantage of a vulnerability gets EXTRA punishment - not a discount!

The approach should be "buyer-beware" in nature - which means - a mistake MIGHT not be offensive/criminal, etc - but the harmdoer bears the 

risk he might be wrong.  

I also urge you NOT to adopt a two-tiered approach.  Brett referred to my case at UVA which was particularly problematic because 

of the way the school determined that a "lesser" offense occurred.  They clearly wanted to give out a lesser punishment, but they did so

by irrationally finding an offender responsible for a lesser charge that made no sense on the facts.  That they had so many damn definitions

was a problem they could have avoided by making things more simple in the nature of the offenses defined in their rules..

The only thing schools need is a sexual harassment policy that defines the behavior by including a list of possibly actionable conduct.

Then include a range of punishments.  

You MUST ALSO resist the temptation to punish penetration crimes more harshly than non-penetration crimes - for several reasons - 

not the least of which is that a victim who is not penetrated could easily suffer far more harm than one who is penetrated.  

It is a myth - and overtly sexist - to suggest that the moment that matters most is when the penis

enters the vagina.  This idea grows from old-fashioned notions about how the harm to a woman is related to her value as a virgin.

The purpose of any effective policy should be to establish firm concepts around autonomy, bodily integrity and gender-discrimination.

This is easily doable with a simple, rather than multi-tiered, process.

I just wrote a gender-violence policy for the NCAA.  It is short and sweet and clear - thus, easy to implement and fair to possible offenders in that

it doesn't mince words of make things seem complicated or gray.

On of the themes I teach in my class is the way law causes problems in enforcement by needless complications and contrived confusion.  Rape

cases are not complicated - nor are they "difficult" to navigate or prove. Just as rape myths about women's credibility infect the fairness of

all forms of redress for victims, myths about how "difficult" rape cases are to prove and defend serve primarily to forgive responsible officials

for their failure to deter the behavior through swift, fair and meaningful justice.

Wendy Murphy