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

Dear colleagues;

Because I only get the digest, I scroll through interesting questions 
sometimes days after the conversation is resolved - so forgive me for 
responding to many things at once.

First - I have written several law review articles about the law of 
privilege and confidentiality for victim counselors and mental health 
professionals.  There is NO reason a person cannot report an incident 
to schools officials - including identifying information.  Only 
communications related to treatment are ACTUALLY confidential - and 
even if identifying information is not revealed, the FACT that the 
counseling occurred and the FACT of treatment itself is NOT protected.  
Resist at all costs any attempt to use communications privileges to 
hide the truth about violence against women on campus - at least in its 
statistical form.

Second - In a recent Chronicle of HIgher Education story - the writer 
posited a theory about where all the recent campus sexual assault 
activism came from.

I suspect the answer is more opinion than fact, but allow me to offer 
my opinion in response to the Chronicle's claim that it started with a 
complaint filed by a woman named Laura Dunn in 2006.  In fact, 06 was 
when my Title IX law review article came out - which was the first time 
any law review article was published about the relationship between 
Title IX and sexual assault. Laura knew about my piece AND that the 
article was written about a landmark case I'd filed against Harvard 
several years earlier - which was the first time not only that Harvard 
was in trouble for violating Title IX regarding sexual assault 
policies, but was also the first time ANY school was subjected to an 
OCR investigation for having a noncompliant policy (as opposed to 
having a student suffer the violation of her rights in an actual 
controversy on campus.)  I believe it was also the first time OCR ever 
tied Title IX explicitly tied to sexual assault but I haven't done the 
research to prove this.

Anyway - that first-ever OCR investigation of Harvard in 2002 (I'd been 
waiting for a good test case for years and it helped that I was a 
Visiting Scholar at Harvard Law School at the time. As an activist 
academic - I knew that change would trickle down faster than it would 
trickle UP). Harvard was forced by the complaint I filed to revise its 
noncompliant policies and that led the way to explosive new activism 
across the country thereafter. In fact, that case helped inspire 
especially students at elite schools where individual students no 
longer had to serve as sacrificial lambs to hold schools accountable.  
Anonymous students - or a lawyer like ME (like I?) could file on behalf 
of "women as a class." It was a great moment in Title IX advocacy.

I'm bothering this list with this important historical information 
because the Chronicle of Higher Ed isn't always the most aggressive 
source of information on behalf of activism and the interests of women 
and victims as a class.  The internet is far more likely to produce 
objective information than even  mainstream media.  For example, 
neither the New York Times, Bloomberg or Time Magazine (Claire Groden) 
have written about investigations currently underway against Harvard 
Law, Princeton and UVA - even though they know of the cases and the 
Harvard Law and Princeton cases were opened for investigation way back 
in 2010 - long before Yale. In fact, the Harvard Law and Princeton 
cases were sent to OCR headquarters in 2010 by me - along with a 
request that the DOE issue global guidance for all schools because 
problems at Harvard and Princeton were systemic.  My request was 
supported by national advocacy organizations who sent "amicus" letters 
supporting my request - and OCR responded favorably - agreeing to issue 
global guidance.  As we all know, that global guidance soon appeared in 
the form of the Dear Colleague Letter of April 2011. While the Yale 
complaint had been filed right before Joe Biden's visit to UNH to 
announce the Dear Colleague Letter, the DCL had nothing to do with Yale.

Within days of the DCL being issued, it was effectively "trumped" by 
the Campus SaVE Act which was heavily lobbied by elite schools.  SaVE 
was packaged and "sold" to uninformed advocates as a "codification" of 
the Dear Colleague Letter, but in fact, SaVE was meant to undermine 
most of what was great about the DCL - and because it was eventually 
tacked onto the VAWA, few advocacy groups complained because they 
needed the VAWA funds to start flowing.

Because some of what is so harmful about SaVE relates to recent 
questions on this list about consent and intoxication - I am posting 
here a brief "compare and contrast" analysis to point out the key ways 
in which SaVE is harmful - and why Title IX and the DCL are far 
superior.

Further to that point, I hope you will encourage students NOT to rely 
on resources such as the hyped "know your title ix rights" website - 
NOT because it doesn't have some valuable information but rather, 
because it lacks critical insight about why SaVE is so dangerous - and 
fails to encourage women students victimized by harassment or violence 
"based on sex" to assert their rights in EXACTLY the same way as 
students who are targeted for harassment or violence "based on -- " any 
other protected class such as religion, national origin and 
disabilities."

Along with a group of advocates, I am about to launch a website that 
rates schools simply based on whether they comply with the preferred 
standards set forth in the Dear Colleague Letter and civil rights laws 
such as Title IX, Title IV and Title VI - or whether they apply the far 
worse standards permitted under Campus SaVE.

Our site will have only three categories - Best, Worst and Mixed 
Reviews -
If you know that your school will abide the highest standards and apply 
civil rights laws rather than Campus SaVE - please let me know so my 
law students can rank you accordingly.

Also - please note that I teach slides on the issue of intoxication and 
consent - (derived from the law school seminar I've been teaching for 
nearly fifteen years on sexual violence law - including Title IX) and 
when I gave this talk at Slippery Rock last year, the students and 
staff said they had "never seen anything so on point an effective." I 
tell you this not so you will hire me - but so you will be skeptical of 
how you teach this issue.  Many, many schools teach the WRONG idea - 
and they DO blame victims for being unable to protect themselves from 
harm.  Most don't say so directly, but the decisions of schools NOT to 
punish perpetrators who target women incapacitated by alcohol and drugs 
reflect the truth. Recidivist offenders use intoxicants as "weapons" 
(by weapons, I do not mean they PUT alcohol in the woman's mouth - but 
rather - that they select the "drinking girl" as the target and ensure 
that she keeps drinking - and maybe at the end of the night, they put 
something in the target victim's drink that contains some home-spun 
version of GhB - and presto - she can't control her brain or her body 
and the perpetrator knows he can claim she "looked like she was 
consenting" because that's what "rape drugs" do to people's brains.)

This issue --- intoxication and targeting and consent - etc. - is very 
much part of why I am aggressively trying to get schools NOT to comply 
with Campus SaVE.  To understand why SaVE incentivizes alcohol and 
drug-fueled sexual violence - read on - especially #4.

All this information will soon be posted at a new website called 
PUSSH-ER (Parents United With Students Against Sexual Harassment - 
Especially Rape)

KEY DIFFERENCES BETWEEN TITLE IX/THE DCL AND CAMPUS SaVE:

1.    *Under SaVE, "final" decisions on responsibility and sanctions
against perpetrators who commit acts of violence and harassment of
women can be delayed until the eve of the victim's
graduation.

      *Under Title IX, Title IV and the DCL, resolutions of student
complaints must be determined within 60 days.

WHY THE DIFFERENCE MATTERS:

Women can hardly expect to achieve equal access to education or
protection against hostile environments if matters such as rape and 
sexual
assault are not finally resolved until AFTER the victim graduates.


2.    *Under SaVE, schools need not respond to violence against women
unless an incident is actually “reported.”

        *Under Title IX, Title IV, Title VI and the DCL, schools are 
mandated to
act, even without an actual "report," when they “know or should know” 
that harassment or
violence "based on sex" has occurred.

WHY THE DIFFERENCE MATTERS:

ONLY 5% of sexual assaults are reported. Victims often refuse to report
because of intimidation fear and concern that the school's response
will be in adequate.  Requiring a "report" as a prerequisite to
official response will lead to increased violence and harassment and
further inhibit reporting by incentivizing intimidation tactics.


3.   *Under SaVE, schools have discretion to treat the word of the
victim as per se LESS credible than the word of the offender by 
applying
a disproportionately strict burden of proof, such as the "clear and 
convincing
evidence" standard (about 75% proof) at hearings where allegations of 
harassment and
sexual and dating violence are addressed.

      *Under Title IX, Title IV and the DCL, schools are obligated to
apply a "preponderance of evidence" standard, (about 51% proof),
which is not only the standard that presumes all students are equally
credible unless and until the evidence proves otherwise but also
applies to hearings involving other forms of harassment and violence
on campus based on things like race, national origin, etc.

WHY THE DIFFERENCE MATTERS

It violates the most basic laws of fairness and "equitable" treatment
to subject the word of a woman to stricter scrutiny compared to the
statements of other "types" of students.  In turn, violence and
harassment of women will occur at disproportionate levels because it
will be more difficult to redress if reports are subjected to more
rigorous standards of proof.

4.     *Under SaVE, schools must provide training on the criminal rape
law definition of "non-consent."

         *Under Title IX, Title IV and the DCL, schools are obligated 
to
apply the more generous and protective civil rights standard of 
"unwelcome" or "unwanted." This
standard applies to all other forms of targeted harassment and violence 
on campus based on
things like race, national origin, etc.

WHY THE DIFFERENCE MATTERS

"Unwelcomeness" takes into account that victims often passively, or 
while
intoxicated, submit to coercive sexual and physical harm, either 
because they "freeze" or
are unable to respond due to intoxicants or physical weakness, which
can be construed as "consent" under criminal law. This is especially
problematic in jurisdictions where the law allows for consideration of
the perpetrator's subjective state of mind, and whether he claims to
have made a "mistake" regarding the victim's consent. Civil rights laws
apply a more appropriate standard of "unwelcomeness" for all "types
of targeted harassment and violence under Title IX, Title IV, Title VI
and the DCL, and are much less tolerant of a perpetrator's mistake
about consent because the test for whether an offense occurs is 
primarily
determined by the subjective experience of the victim, along with 
concern
for the larger educational "climate" of equality for women as a class.

THE BOTTOM LINE:

Because schools can choose to comply with preferred standards set forth
in Title IX, Title IV, Title VI and the DCL, this site classifies 
schools according
to their expressed willingness to choose to comply with civil rights 
laws,
rather than the lesser standards set forth in Campus SaVE.

Wendy Murphy
New England Law|Boston