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

[Brett Sokolow <>]

I have just a few thoughts:

I agree with Wendy's assertion that "special" can function as code, and as 
less than equal.  Despite that, we've always advised our clients toward a 
Critical Issues Board model, which is broader than a sexual 
assault/misconduct board.  It's still "special", though, and the reason why 
is two-fold.  One is that it's simply a reflection of how colleges operate, 
and therefore practical.  Giving an "all misconduct" board "special" training 
on civil rights issues is difficult, logistically, because you are often 
dealing with gathering a large group of people for a decent block of time, 
and the specialized training (in my experience) gets lost in the more general 
training topics.  Breaking out specialized training allows for chunking of 
smaller time units, which allows better absorption of the training.  

The second reason is that being able to advertise a specialized board has 
resulted, on most of the campuses that use it, in higher rates of reporting.  
We do it to assure victims that they will be treated with fairness and 
sensitivity.  Wendy's right that "special" can backfire, but I do think that 
the right kind of training can overcome that effect (though the question is 
legit -- how often do we achieve the level of training needed to make that 
happen?).  I rarely get enough time to train boards, and what is left at the 
wayside are the larger civil rights training topics -- we often only have 
time to focus on sexual assault/misconduct.  

All of which suggests to me that truly stepping up on the training time and 
content is what is needed, but as a trainer, I would say that.

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


"Best Practices for Campus Health and Safety"

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

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Special Counsel, Northern Virginia Community College
Special Counsel, Southwestern Michigan College
Special Counsel, the Community College of Allegheny County
Special Advisor, Vassar College
Special Advisor, Henry Ford Community College 
Special Counsel, Bridgepoint Education
Special Counsel, Milwaukee Area Technical College
Special Counsel, Salisbury University
Special Counsel, Wesley College
Special Counsel, University of Arizona
Special Counsel, University of the Pacific

-----Original Message-----
From: Kathy Platt 
[mailto:]
 
Sent: Monday, July 25, 2011 4:16 PM
To: Claire Kaplan; 

Cc: Monique Stallings; Liz Chamale; Amber Hartman
Subject: RE: Special Boards for Sexual Assault

I believe there is one huge difference between "other forms of targeted 
harassment" and rape-rape is a felony! Other forms of harassment may not be

Kathy Platt, MHC
Registered Mental Health Counselor Interin #IMH8556
Director, Victim Services
Peace River Center


-----Original Message-----
From: Claire Kaplan 
[mailto:]
 
Sent: Monday, July 25, 2011 2:53 PM
To: 

Subject: Re: Special Boards for Sexual Assault

Wendy sent this post more than once and it never got distributed for some 
strange reason.  So here it is.
Claire

--------------
From: Wendy Murphy 
<>
Date: Sun, 10 Jul 2011 23:45:47 -0400
To: 
<>
Subject: Re: sapc Digest Sun, 10 Jul 2011 

Re: Special Boards for Sexual Assault

Dear colleagues;

It makes me nervous - as a feminist - to hear people talk of "special" 
anything when it comes to sexual assault.  "Special" is too often code for 
"lesser" - "different" - "other" and is used to legitimize unequal treatment 
of women. 
For similar reasons, I am opposed to "rape courts" and in general I oppose 
"special" rules such as "rape-shield" laws (a longer story for another time, 
but suffice it to say, rape-shield laws, in my opinion, should be abolished).

I strongly favor, however, special training - though I am fiercely dedicated 
to the idea that such training be conducted together with training re: the 
prevention of ALL civil rights harms.  Campus officials should be thinking 
about sexual violence in the same way that they think about targeted 
harassment based on race, religion, etc.  It isn't that the substantive 
issues are always the same, though they can be, but it should feel instantly 
like a civil rights matter - and not only a "sexual assault" - when the 
investigation gets underway.

In my article from many years ago on the "equity" mandate of Title IX, I 
argue that schools risk OCR involvement if they adopt procedures for the 
handling of sexual assault matters that are in any meaningful way DIFFERENT 
from the procedures for the handling of allegations of other forms of 
targeted harassment.  Equity means not only inherent fairness, but also 
fairness vis a vis the way a school handles other forms of harassment on 
campus. 

Further to the point of special training is that investigators AND Board 
members should be well-versed in rape myths and in the "culture of the 
courtroom".  There is no equitable way to pass judgment on a matter unless 
officials have been trained to engage in self-critical awareness of their own 
biases, and educated about the nature of rape myths and the ways they affect 
our feelings about and reactions to the evidence.  A keen understanding of 
the way our cultural biases undermine fair judgments of victims is essential, 
whether the board is considered a "sexual assault" specific panel or some 
broader-entitled entity.

Wendy Murphy
New England Law|Boston

Note added 7/25/11:

Mandatory investigation is often framed as taking away choice, etc. from the 
victim - and arguments in this context against mandatory investigations 
typically state that this will reduce reporting.  To my knowledge, there is 
no data to support this claim. While it may be the case that mandating 
investigations obligates schools to act, this should be framed as the school 
carrying out its "duty" - not "taking away victim authority".  This same 
debate occurs all the time in the real world criminal justice system where 
women victims of violence are given the "choice" to drop the charges - or the 
"choice" whether police take any action after a report is made.  A few points:

1. Data from the real world regarding violence against women and mandatory 
official action shows that when an official response is mandatory and the 
decision whether to proceed is not imposed on the victim, recidivism rates 
are dramatically reduced. Though it is sometimes difficult to know whether 
lower recidivism rates reflect a reduction in reporting or a reduction in 
incidents, the study design took this concern into account to ensure that 
they were measuring only actual incidents.  After five years, data showed 
that mandatory official action dramatically reduced incidents of harmful 
behavior without significant negative consequences for victims.

2. This "choice" debate is not imposed on any other type of crime victim or 
witness to violence.  Victims of gang violence and eyewitnesses to drunk 
driving are not asked whether they want the system to do its job.  They are 
expected to participate in the process.  Why "choice" for only women victims 
of violence (a terrible exploitation of abortion rights language, I might 
add. 
This debate is not remotely about autonomy, privacy or authority over the 
self.
 The underlying incident IS, however and deserves civil rights treatment as
such).  Advocates will argue that sexual assault is "different" but this claim
lacks appreciation for the historical misuse of framing social problems form 
women as "different".  It is a well-settled concept in women's rights 
activism that "differentness" - while packaged and sold as if "special 
consideration" is a good thing - is most often used to justify disparate 
negative treatment.  

3. If this were truly about choice, victims would have authority to "choose" 
to compel school officials to act - even against official declinations.  In 
other words, this concept of "choice" is typically used only to justify 
non-action by school officials - and its effect is doubly harmful because the 
victim is blamed for the decision.  If an offender commits additional acts 
thereafter, it becomes the first victim's fault rather than the fault of 
school officials.  

4.  I agree with the suggestion that schools should develop central 
repositories of information that are offender-based so that no matter what 
happens in a given case, repeat offenders are easily identified.  I proposed 
this many years ago in the university and military contexts - but the 
resistance was substantial and opposition voices pointed to privacy concerns 
to justify avoiding such repositories.  This concern is misplaced. There is 
no reason a school could not adopt a policy of collecting data in an 
offender-specific file.  Schools are reluctant to do this because it greatly 
increases their liability exposure under the "deliberate indifference" 
standard
- and if they acknowledge having such a policy, they either must produce it 
during litigation - or explain why they didn't gather data on a repeat 
offender.  Thus, while it is a good idea to have such a file, schools will 
not likely create them - which is yet another reason not to support the 
"choice"
option as there will be no way of assuring accountability in the absence of 
an investigation.

In general, the mantra of "choice" is a snake in the grass that will 
incentivize non-reporting by rewarding intimidation tactics.  Why wouldn't an 
offender take steps to intimidate, threaten or coerce a victim not to proceed 
under a policy that gives HER the power to prevent an investigation?  This is 
basic stuff.

Wendy Murphy
New England Law|Boston