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

[Brett Sokolow <>]

Steve,

 

Thanks for pressing these issues.  I wish I had your clarity of perspective.  Gayle Sakowski from OCR reiterated the same thing to me that you and S. Daniel are highlighting, that consent to investigate is necessary, but remedies may be implemented short of a formal investigation.  What I think is missing here from OCR is the distinction between a small “i” preliminary investigation and a capital “I” comprehensive investigation.  In the small i, we might look into patterns, repeat perpetration, violent tendencies, etc., without disempowering a victim or taking away control over the process.  The task is to essentially confirm that it is responsible to honor a victim’s request for no action.  Some will argue it is always responsible to do so, though I think we also have a duty to protect the next victim, which must be balanced with our duty to honor the wishes of the victim who has brought the report to our attention initially.  What is more right, to protect the last victim or the next?  That’s a value judgment, not a question of right and wrong, I think.  There is no best answer except that I think we always conduct the little i investigation, but only conduct the big I when we have the victim’s consent, or we feel an obligation to act to protect our community. I also want us to consider that the legal duties imposed on colleges by Title IX are not our only duties.  Warning and protecting from foreseeable harm are duties on colleges imposed by state negligence laws.  So, Title IX is not the whole story here.

 

That said, I do agree that some university counsel and coordinators are overreacting, such as imposing mandated reporting on RAs.  Steve is right that time and again that will create a chilling effect on reporting.  One of the biggest misunderstandings is that conducting the big I investigation requires the involvement of the victim.  Whenever we can, I advise that if we MUST pursue a big I investigation without the victim’s consent, we do everything in our power to minimize her (or his) entanglement, and take action to protect from retaliation.  Often, our ability to address the conduct and implement remedies does not implicate a formal conduct process, or require that we drag the victim into the role of complainant in that process.  Another misunderstanding is chasing down notice, by pursuing every rumor or anonymous report to ascertain more.  That’s not what constructive notice means, and our duties to act only commence upon actual or constructive notice to a responsible employee. 

 

While compliance is a goal, many of the administrators I am working with on these issues are coming from a different place.  They see Lisak’s data and others’, and know the likelihood that a report of one incident holds the key to others, and to uncovering a pattern.  The desire to uncover the pattern and rid the campus of a predator is not misplaced, but we’re still struggling with counterbalancing that desire with a victim’s rights.

 

The legal issue is not as clear cut as I’d like, either.  The LaSalle University Clery Act investigation, the recent reporting controversy at Marquette, the prosecution of Dean Patricia O’Toole from Notre Dame College of Ohio, and the obstruction charges against the police chief at the University of Dayton are examples of significant legal consequences for doing just what we’re all advocating for, honoring the wishes of the victim not to act on a report. 

 

And, add to that the developmental issues, too.  An 18 year-old victim may not want to report, or be strong enough to pursue a campus complaint.  Talk to that same victim as a thirty or forty year-old, and she may express regret looking back that she did not pursue it.  I’m not offering this as conjecture, but as a more and more frequent occurrence in my practice.  I wonder how we address that knowing we can only counsel the 18 year old and not as future version of herself?   Then there is an ethical issue.  To encourage a victim to report and consent to an investigation, we need to be able to vouch for our process.  Too many campuses are not there yet. 

 

Regardless of Lynn’s statements, I don’t think we’re going to see a roll back of the DCL.  Russlynn worked too long to bring the DCL into existence to take action that would erode Guidance that has been in place since 1997.   Perhaps a clarification might help, but still will only address Title IX, not negligence liability.  And, opening the door to any roll back may prove an invitation to groups like FIRE to try harder to roll back the provisions on due process and preponderance that they object to so vehemently.  Thanks again for your work on this.  I’m not trying with this email to diminish it, but to instead struggle aloud with questions that I hope others can weigh in on as well. 

 

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


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Executive Director, The National Behavioral Intervention Team Association (www.nabita.org)

NCHERM serves as counsel/advisor to 22 campuses, including:

Special Counsel to Franklin & Marshall College

Special Counsel to Dominican University (IL)
Special Counsel to Warren Wilson College
Special Advisor to the University of Texas, San Antonio
Special Counsel  to Concordia University (TX)
Special Counsel to Northern Virginia Community College
Special Counsel to Southwestern Michigan College
Special Counsel to the Community College of Allegheny County
Special Advisor to Vassar College
Special Advisor to Henry Ford Community College
Special Counsel to Bridgepoint Education
Special Counsel to Milwaukee Area Technical College

Special Advisor to Whittier College

Special Counsel to the University of the Pacific

Special Counsel to Wesley College

Special Counsel to the University of Arizona

 

From: Thompson, Stephen M. [mailto:]
Sent: Wednesday, July 20, 2011 4:23 PM
To: ; ;
Subject: "Dear Colleague" (DCL) Clarification

 

Hello Everyone

 

Many of you were aware that I had a meeting with Ms. Lynn Rosenthall, White House Advisor on Violence Against Women, Monday, July 18 in Washington, D.C..  The purpose was to discuss the way many university OCR’s and University Counsels were interpreting the “Dear Colleague” letter.  The concern centered around their interpreting the letter as mandating that when a sexual assault survivor discloses to anyone within the university, the OCR must get a report and do an investigation.   

 

The meeting began with me praising the intent of the letter to create a consequence for those universities that were not operating with the best interests of survivors.  Many of us know the stories of universities that have not responded to survivors and basically acted with “Deliberate Indifference” after a survivor disclosed and wanted action taken.  Ms. Rosenthall, who was one of the framers of the DCL, was unaware that by attempting to fix one problem, another was created for survivors at institutions that were survivor centered.  Following are the main points we discussed:

 

·        Deliberate indifference prompted much of this letter, however, some universities interpret the letter as mandating all disclosures be investigated.  This practice ignores survivor centered “waiver”.  With adult survivors there have been no successful university law suits where the university was sued for doing what the survivor wanted.  Meaning, if a survivor discloses an assault, but states he/she is not ready to report, universities are not sued for doing what they ask. 

 

·        Practitioners believe many universities are interpreting the DCL to mandate reporting at the expense of building a survivor centered safe campus culture that encourages disclosure. When survivors are not in control of the information flow, forced reporting after disclosure reduces the number of reported incidents by reducing the number of survivors who disclose.

 

·        Page 5, of DCL states that consent must be gotten before beginning an investigation.  Some universities civil rights officers are ignoring this and interpreting that they must do an investigation regardless of wishes of survivor. This practice is discriminatory in that survivors of other crimes are not forced to report if they disclose, whereas survivors of sexual assault could be forced to go through an investigation.   This guideline interpretation subjects survivors to potential emotional and mental distress, which could limit their ability to access services and to participate in the educational program.

 

 

·        OCR investigators know harassment, discrimination, and gender equity issues and investigative procedures; however, sex assault investigations are entirely different.   Trauma, survivor safety, the dynamics of the crime and legal consequences are different for SH and SA. Sexual harassment and discrimination are civil issues; sexual assault is criminal which brings rape shield and statute of limitations into play. Statutes of limitations in criminal cases acknowledges survivor trauma and delayed reporting.

 

 

We were in agreement on all of the above points. Ms. Rosenthall stated repeatedly that the intent of the framers was not to force adult survivors to report nor to empower OCR with mandatory investigations without consent of the survivor, and it is wrong to interpret it that way.   She will be meeting with the DOE and OCR to produce clarification.  Because our meeting was the first time she has heard of the interpretation problem, she asked that I request all who share this concern to email me a brief statement of support.  I will compile these and send them to her as documentation for her DOE and OCR meetings.  PLEASE send me a brief statement ASAP to .  Thank you all very much.

 

Steve

 

Steve Thompson

Sexual Aggression Services Director

Central Michigan University

SAC 195

Mt. Pleasant, MI. 48859

Phone: 989-774-6677

http://www.stephenmthompson.com

http://www.sapa.cmich.edu