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

[Brett Sokolow <>]

Hi Carmen and Lauren, 

I really appreciate these concerns, and wish to share some problem-solving thoughts without disagreeing.  I am going to use all caps below to set off my comments from Carmen's, but am not yelling.  

Aside from the insurmountable task of training and notifying the thousands of employees, for which we have no system in place at present, here were a few thoughts:  MY PREFERENCE FOR MAKING ALL EMPLOYEES CSA'S IS BASED IN TWO IDEAS.  ONE IS THAT, LEGALLY, THE NOTION THAT EMPLOYEES MUST REPORT CRIMES TO THEIR EMPLOYER IS FOUND THROUGHOUT CORPORATIONS AND ORGANIZATIONS.  STEPPING BACK FROM THE CLERY ACT, IT IS AN INHERENTLY REASONABLE REQUEST.  OR, PUTTING IT AS THE LAWYER SUING YOUR CAMPUS WOULD, WHY WOULD YOU INSTRUCT EMPLOYEES NOT TO REPORT CRIMES TO YOU?  THE SECOND REASON IS THAT I HAVE TRIED TO TRAIN ON THE LETTER OF THE LAW ON CAMPUSES FOR YEARS -- AND ECHOING YOUR FRUSTRATION WITH FAILED TRAINING EFFORTS, BELOW — AND HAVE FAILED MISERABLY.  HERE'S WHY.  THE CLERY ACT ISN'T THE ONLY STORY.  YOU HAVE TO TRAIN ON TITLE VII, TITLE IX AND STATE CHILD ABUSE REPORTING LAWS TO GET THE COMPLETE MANDATED REPORTING PICTURE.  AND, EACH LAW IMPOSES DIFFERENT OBLIGATIONS ON DIFFERENT EMPLOYEES.  ANOTHERWORDS, TO FULLY COMPLY, YOU HAVE TO TRAIN DIFFERENT SETS OF EMPLOYEES ON 4 DIFFERENT REPORTING SCHEMES.  HAVING TRIED IT FOR YEARS, YOUR AVERAGE PH.D. FACULTY MEMBER CAN'T KEEP IT ALL STRAIGHT FOLLOWING TRAINING.  I BLAME THE FEDS FOR THAT COMPLEXITY, NOT FACULTY INTELLECTS.  SO, WHILE I DON'T DISAGREE WITH YOU AT ALL, I HAVE FOUND THAT SIMPLE IS BETTER.  ALL EMPLOYEES HAVING A DUTY TO REPORT IS SOMETHING WE CAN CREATE LOGICAL POLICY AROUND (LAUREN HAS BEEN STRUGGLING WITH UNLEAR POLICY DIRECTIVES AT EMORY), AND WE CAN TRAIN ON.  THEN, THE QUESTION BECOMES YOURS, WHICH IS HOW DO YOU TRAIN ALL OF THESE FOLKS?  MY FIRST ANSWER IS THAT SINCE WE ARE ALREADY OBLIGATED TO TRAIN THEM ON SEXUAL HARASSMENT AND THE STATE CHILD ABUSE REPORTING LAW, WE JUST ADD THIS INFORMATION TO THAT TRAINING OPPORTUNITY RATHER THAN CREATE A NEW ONE.  ADDITIONALLY, DOLORES STAFFORD'S ORGANIZATION SELLS A COST-EFFECTIVE CSA TRAINING ONLINE, AND ATIXA JUST RELEASED OUR ONLINE TRAINING ADDRESSING ALL FOUR AREAS OF MANDATED REPORTING.  WE MADE IT BECAUSE TRYING TO TRAIN ON THE ACTUAL LAWS IS JUST TOO COMPLEX.  EVEN IF YOU TRAIN JUST YOUR STATUTORILY DEFINED CSA'S, WE STILL HAVE TO GET THE TRAINING PIECE RIGHT, BECAUSE THAT IS THOUSANDS OF PEOPLE ON SOME CAMPUSES.  

-under the "once a CSA, always a CSA" rule, a student employee who is a dishwasher would have to report his or her friend's experiences disclosed in conversation. There are thousands of student employees in addition to the thousands of faculty and staff who may only work 5 hours/week.  Washing dishes 5 hours a week, in my mind, in and of itself, does not make someone a CSA.  HERE I WILL DISAGREE WITH YOU, BUT ONLY BECAUSE I THINK SOMEONE HAS FED YOU MISINFORMATION.  I DON'T KNOW WHERE THIS RULE CAME FROM (PERHAPS IT IS YOUR CAMPUS POLICY), BUT IT IS NOT A CLERY REQUIREMENT.  IN FACT, IT IS DIRECTLY CONTRADICTED ON P. 76 OF THE CLERY HANDBOOK.  

-we also have a state mandate making all university employees child abuse reporters, and though training efforts were developed, no tracking or monitoring is happening campus-wide, raising concerns about the training and notification employees would receive.  ALL THE MORE REASON TO GET THE TRAINING PIECE RIGHT.  I DON'T SEE THIS AS AN ARGUMENT FOR NARROW CSA DEFINITIONS SO MUCH AS A CHALLENGE TO EMPOWER TRAINING CULTURES ON CAMPUSES WHERE THE CULTURE DOES NOT CURRENTLY SUPPORT IT.  TO COMPLY WITH TITLE IX AND SAVE, WE WILL HAVE TO, SO I THINK THAT HORSE HAS ALREADY LEFT THE BARN.

-even with training of key student services staff at present, victim names are being reported, compelling investigations that are not requested by the victim.  I AGREE WITH THIS.  A COUPLE OF POTENTIALLY HELPFUL THOUGHTS.  USING AN ONLINE REPORTING SYSTEM, SUCH AS MAXIENT, CAN EMPOWER ANONYMOUS REPORTING AS A THE STANDARD, WITH THE TITLE IX COORDINATOR ONLY GOING BACK TO GET NAMES ON REQUEST.  OR, IT CAN MAKE CLEAR THAT NAMES ARE OPTIONAL AT THE TIME OF UPLOADING THE REPORT AS A REMINDER TO REFRESH THE TRAINING.  SECOND, EVEN IF THE COORDINATOR GETS A NAME, IF THE VICTIM REQUESTS NO ACTION, OCR WOULD WANT THE COORDINATOR TO HONOR THAT TO THE EXTENT THEY CAN.  IT'S NOT AN ALL-OR-NOTHING ONCE THE VICTIM'S NAME IS KNOWN.  

-our state statute has been interpreted to require reporters to determine if the assault is 1st, 2nd, 3rd, or 4th degree assault though Clery CSAs are not to be making determinations about crimes  (unless they are law enforcement) THAT WOULD BE TRUE OF ALL EMPLOYEES, IF TRUE (SEE STATUTE BELOW), NOT JUST CSA'S.  BUT, I DON'T SEE THAT IN THE STATUTE, SO AM NOT SURE WHERE THE INTERPRETATION COMES FROM.  I'M NOT A WISCONSIN LAWYER.

(22) Orientation program; information on sexual assault and sexual harassment.

(a) The board shall direct each institution and college campus to:

1. Incorporate in its orientation program for newly entering students oral and written or electronic information on sexual assault and sexual harassment, as defined in s.111.32 (13), including information on sexual assault by acquaintances of the victims and on all of the following:

a. The legal definitions of, and penalties for, sexual assault under ss. 940.225, 948.02 and 948.025, sexual exploitation by a therapist under s. 940.22 and harassment under s. 947.013.

b. Generally available national and state statistics, and campus statistics as compiled under par. (c) and as reported under par. (d), on sexual assaults and on sexual assaults by acquaintances of the victims.

c. The rights of victims under ch. 950 and the services available at the institution or college campus and in the community to assist a student who is the victim of sexual assault or sexual harassment.

d. Protective behaviors, including methods of recognizing and avoiding sexual assault and sexual harassment and locations in the community where courses on protective behaviors are provided.

2. Annually supply to all students enrolled in the institution or college campus printed or electronic material that includes all of the information under par. (a).

(b) Annually, the board shall submit a report to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3). The report shall indicate the methods each institution and college campus have used to comply with par. (a).

(c) Any person employed at an institution who witnesses a sexual assault on campus or receives a report from a student enrolled in the institution that the student has been sexually assaulted shall report to the dean of students of the institution. The dean of students shall compile reports for the purpose of disseminating statistical information under par. (a) 1. b.

(d) Annually, each institution shall report to the department of justice statistics on sexual assaults and on sexual assaults by acquaintances of the victims that occurred on each campus of the institution in the previous year. The department of justice shall include the statistics in appropriate crime reports published by the department.

-it creates a climate of victims feeling that any mention of their experience to friends, as part of a course discussion, and/or on a survivor speak out, will be reported if an employee witnesses those events DO WE HAVE DATA TO SHOW WHETHER THIS CREATES A CHILLING EFFECT OR NOT, IF ONLY AN ANONYMOUS REPORT IS MADE?  I'D BE INTERESTED IN A CLIMATE SURVEY THAT ASKS ABOUT THAT.  MOST VICTIMS I HAVE WORKED WITH WANT THEIR EXPERIENCE COUNTED AS A STAT, EVEN IF THEY DON'T WANT TO DO ANYTHING ELSE.  AND, WHY WOULD THE VICTIM KNOW THE EMPLOYEE MADE THE REPORT IN THE CASUAL EXAMPLE YOU PROVIDE HERE?  I THINK THIS CONCERN IS REAL WHEN THE CAMPUS POLICY IS A FULL REPORT OF EVERY CASUAL MENTION, WHICH IS NOT WHAT ANYONE WANTS.  

-it does not exclude those the handbook clearly excludes (faculty without other campus obligations and clerical/cafeteria staff).  I AGREE.  I JUST DON'T WANT TO SEE CLERY AS EVER SETTING THE CEILING, JUST THE FLOOR.  IT WOULD BE GREAT TO GET TO COMPLIANCE, BUT IDEALLY, EVERY CAMPUS SHOULD BE DOING SO MUCH MORE THAN THE MINIMUM REQUIRED BY CLERY.  

I hope that's helpful start— I FEEL LIKE I'M ARGUING A LITTLE POINT-BY-POINT EVEN THOUGH THAT WAS NOT MY INTENTION.  I'M REALLY JUST TRYING TO OFFER UP WHAT I HOPE IS THE BENEFIT OF MY FAILED ATTEMPTS OVER THE YEARS TO TRAIN ON WHAT MY CLIENTS WANTED, ONLY TO FIND THAT WAS UNWORKABLE.  WITH THE ONSLAUGHT OF FEDERAL TRAINING REQUIREMENTS, I TEND TO THINK THE SIMPLER THE BETTER.  I DON'T HAVE ALL THE ANSWERS, AND DON'T THINK MY APPROACH IS IDEAL.  YOUR CONCERNS WEREN'T ACTUALLY WHAT I EXPECTED THEY WOULD BE, SO THIS HELPS ME TO LEARN FROM YOUR EXPERIENCES AS WELL.  THANKS.  

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law

President & CEO, The NCHERM Group LLC

Executive Director, The National Behavioral Intervention Team Association 

Executive Director, The Association of Title IX Administrators 

Publisher, Student Affairs eNews 

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The NCHERM Group, LLC serves as legal counsel/advisor to 35 campuses

From: <Hotvedt>, Carmen <>
Date: Friday, August 23, 2013 7:28 PM
To: Brett Sokolow <>
Cc: "" <>
Subject: Re: CSA question--ALL employees?

Aside from the insurmountable task of training and notifying the thousands of employees, for which we have no system in place at present, here were a few thoughts: 

-under the "once a CSA, always a CSA" rule, a student employee who is a dishwasher would have to report his or her friend's experiences disclosed in conversation. There are thousands of student employees in addition to the thousands of faculty and staff who may only work 5 hours/week.  Washing dishes 5 hours a week, in my mind, in and of itself, does not make someone a CSA 

-we also have a state mandate making all university employees child abuse reporters, and though training efforts were developed, no tracking or monitoring is happening campus-wide, raising concerns about the training and notification employees would receive 

-even with training of key student services staff at present, victim names are being reported, compelling investigations that are not requested by the victim

-our state statute has been interpreted to require reporters to determine if the assault is 1st, 2nd, 3rd, or 4th degree assault though Clery CSAs are not to be making determinations about crimes  (unless they are law enforcement) 

-it creates a climate of victims feeling that any mention of their experience to friends, as part of a course discussion, and/or on a survivor speak out, will be reported if an employee witnesses those events 

-it does not exclude those the handbook clearly excludes (faculty without other campus obligations and clerical/cafeteria staff)

I hope that's helpful start--