About this Campaign
The proposed Sexual Misconduct Policy at the University of Virginia is open for public comment through December 20, 2014. This is your opportunity to shape and give feedback on the proposed policy and create some real change for UVA students!
1 in 5 women will become a victim of sexual violence during her time in college. UVA is updating their Sexual Misconduct Policy in order to improve the University’s response to sexual assault on grounds. This policy is an important tool for students seeking resources following a traumatic experience with sexual violence.
All members of the UVA community – including students, alumni, faculty, and staff – are encouraged to comment. We also invite students from across Virginia and the rest of the country, along with citizens of the state to participate in this process. We have an opportunity to shape a landmark policy that may change the way universities respond to campus sexual assault across the nation! We must use our voices to make this policy comprehensive and effective.
This campaign is led in partnership with FIFE, Feminism is for Everyone, at University of Virginia.
Below is a drafted comment with a general critique of the proposed policy, as well as commentary on various sections of the proposed policy. Please use this drafted comment in its entirety or pull from different sections you feel most strongly about. Also, definitely add your own perspective and story into the draft – this is meant to help you frame your comment, but your experiences add tremendous power!
Skip To: Creation of Coordinated Community Response Team | Governing Laws | Scope of the Policy | Definitions of Prohibited Conduct (Section III) | Options Available to Student Survivors | Reporting to the University | Interim Measures | University Complaint Resolution Process | Training | Infographic | Copy In Full
As a concerned member of the University of Virginia,
I strongly support the university taking concrete steps to educate, prevent, and effectively respond to rape, sexual assault and other forms of sexual misconduct impacting our community.
[INSERT YOUR MAJOR CONCERNS OR PERSONAL STORY HERE]
The proposed new Student Sexual Misconduct Policy is a step in the right direction; however, as currently drafted, the policy is cumbersome and confusing. In considering how to move forward with finalizing this new policy, the university should convene a diverse group of stakeholders to examine the structure and content of the policy and to ensure that it is user-friendly for students, faculty, staff, and administrators.
Special emphasis should also be taken to ensure that the information is presented, first and foremost, to aid student survivors trying to determine (1) possible options to pursue after an incident of sexual misconduct and (2) the responsibilities of the university in this regard. In particular, the introductory section of the policy – the most important summary of the contents of the document – must be made clearer so students can know all of their reporting options, what those options entail, and what will happen in the course of making a report, including whether the report will remain confidential or not. This section should also provide information on the university complaint procedure. Currently, there is only one sentence in the introduction that discusses the complaint procedure and it is conflated with the reporting options.
In general, the university should also use stronger language to convey the seriousness of the misconduct described in the policy. The term “sexual assault” includes a range of misconduct, but it also includes rape. The university should not shy away from using the term “rape” in the policy.
The university should also emphasize that rape, sexual assault, sexual exploitation, domestic violence, and stalking constitute crimes in the state of Virginia, and possibly federally, and in other jurisdictions. Although definitions of these terms are contained in the proposed policy, the final version should also include a clear definition of what constitutes rape, sexual assault, sexual exploitation, domestic violence, and stalking under federal and state criminal law. Given the university’s location, it may also be useful to include more information on the Virginia criminal code, written in a manner that is easily understandable, in an appendix to the policy.
This type of information – on the possible criminal nature of the conduct – may strengthen “a culture of reporting,” by emphasizing that the misconduct described in this policy can be a serious crime, in some cases a felony, that represents wrongdoing not on the part of the victim, but on the perpetrator. Empowering students to report is especially important given that a majority of college men who admit to committing or attempting to commit a rape, also admit to committing multiple offenses, averaging six rapes each.
In addition to these points, I would like to urge the university to incorporate the following specific suggestions to improve the proposed Student Sexual Misconduct Policy:
As a preliminary matter, the university should convene a Coordinated Community Response Team (CCRT) dedicated to finalizing the Student Sexual Misconduct Policy and ensuring that the final version is streamlined, clear, and responsive to community concerns.
The CCRT would consist of key stakeholders interested in preventing sexual misconduct and providing support to survivors, such as the Office of the Dean of Students (ODOS) staff, including the Title IX coordinator, student or alumni survivors, victims services and/or advocacy professionals, women’s center staff, LGBTQ center staff, student multicultural affairs staff, university counsel, and appropriate faculty who have experience or special training in gender-based violence.
Unlike a taskforce, after the finalization of the Sexual Misconduct Policy, the CCRT would continue to serve the university on an ongoing basis, ensuring proper implementation of the policy as well as education, training, and support. The CCRT would provide a mechanism to continually evaluate the implementation of the policy and identify areas in need of attention. The CCRT would be empowered to establish subcommittees or work groups to focus on any issues, problems, or concerns that may arise related to gender-based violence on campus or the Sexual Misconduct Policy in general.
The inclusion and explanation of the governing laws for the policy is a benefit to the university community. It is therefore important that this section is clear and accurate.
It is important that students understand that sexual misconduct is a form of discrimination and that they have rights under Title IX that protect them from this discrimination. The current explanation of Title IX as a prohibition on “discrimination on the basis of sex,” although accurate, does not explain why Title IX is relevant to a Student Sexual Misconduct Policy. In addition to explaining that under Title IX, federal-funded schools must ensure that students are not denied the ability (or otherwise limited in their ability) to participate or benefit from a school’s educational programs on the basis of sex, the policy should clearly state (1) that sexual misconduct is a form of sex discrimination under Title IX and (2) that sexual misconduct violates a student’s right to be free from discrimination.
The policy should also state that Title IX protects all students from sexual misconduct, including LGBTQ students. In particular, the policy should make clear that Title IX’s prohibition on sex discrimination extends to discrimination based on gender identity.
The policy should also state unequivocally that Title IX requires the university “to respond promptly and effectively to sexual violence against students,” as explained in both the Department of Education Office for Civil Rights’ April 2014 FAQ on Title IX and Sexual Violence and the April 2011 Dear Colleague Letter. It should also state that the university has an independent obligation under Title IX to investigate and address sexual violence and that this obligation is separate from any criminal investigation that may or may not take place.
It is a major improvement over the previous policy that the names and specific contact information for the Title IX Coordinator and the Deputy Title IX Coordinators are included in the policy.
Similarly, the discussion of the Clery Act is too truncated and not well-organized. The first mention of the Clery Act is in the first paragraph of Section I.B.1 (discussing the university’s obligation to collect and report statistics for certain crimes and to publish certain policies, procedures, and programs related to these incidents), but the university’s responsibility to issue “timely warnings” to the university community about “certain crimes” is not discussed until the fourth paragraph (after comments on “due process” and the First Amendment” – both discussed below) and is only touched on in relation to the Family Educational Rights and Privacy Act (FERPA). The university’s responsibility to issue “timely warnings” to the community helps maintain public safety and can literally save lives. This responsibility should not be buried in the policy. Further, it is important for the community to know that by making reports of sexual misconduct, it may help the university issue such timely warnings to others in the community.
The university should include that in addition to the requirement to make “timely warnings,” the university is also required under the Clery Act to give “emergency notifications” in certain circumstances. The university should also list which crimes require timely warnings, how those timely warnings will be made and by whom, what kinds of information might be included in a timely warning, and under what circumstances emergency notifications will be sent to the school community. The creation of a Coordinated Community Response Team (CCRT) would also be beneficial. A CCRT could also provide assistance in ensuring that timely warnings and emergency notifications contain appropriate, useful information directly related to the specific public safety threat at issue.
The university has an obligation to be fair to students making reports of sexual misconduct as well as to students who are the subject of those reports. However, students who are the subject of university complaints are not entitled to “due process” in the same manner as students who are the subject of criminal proceedings. The policy should therefore clarify that accused students must be provided with “administrative due process” in order to avoid confusion. For example, in a criminal trial, a defendant’s failure to testify cannot be held against that defendant. This is not the case in a civil trial or in an administrative hearing where a judge or hearing officer may take a negative inference against a respondent who fails to testify or to cooperate in an investigation.
Although I strongly recognize the importance of the First Amendment and support the values inherent in its language, the inclusion of the First Amendment in the Student Sexual Misconduct Policy is misplaced. To the extent that the policy touches upon speech – in its prohibition of sexual harassment, for example – that “speech” is not protected by the First Amendment. The addition of free speech rights into this policy not only undermines the core concept of free speech, it may also lead members of the university community to second-guess incidents of sexual misconduct. A student may not report harassing comments and behavior if the student believes this misconduct may be protected speech; or a potential offender may not have proper notice that certain conduct is not covered by First Amendment protections. Given this confusion, the reference to the First Amendment may do more harm than good, especially since it is already assumed that the University, as a public institution, must uphold the law.
The PAR policy (Preventing and Addressing Retaliation) should be updated to reflect that retaliation is prohibited against anyone who reports an incident of sexual misconduct or who cooperates in an investigation into a complaint of misconduct.
The Student Sexual Misconduct Policy should make clear that although it focuses solely on students, there are other policies that focus on sexual misconduct by faculty and staff. The policy should direct students to those additional policies for more information, but at a minimum, the Student Sexual Misconduct Policy should make clear that students can report sexual misconduct against other, non-student university members and make complaints through a different set of procedures.
The overall policy would be strengthened by including stronger language indicating that the types of misconduct described in Section III are crimes under Virginia law.
The definition of “effective consent,” as currently drafted, is too confusing. Currently, the definition (Section III.A.3) of effective consent is an “indication” through “clear words or actions” that the parties have “permission to engage in mutually-agreed upon sexual activity.” Effective consent must be informed, voluntary, and active.
This definition should be simplified and streamlined to require the person initiating sexual activity to receive verbal agreement to the activity in the form of an affirmative “yes.” As currently drafted, a person need n0t say “yes” in order for a decision maker to find that the student “effectively consented” to sexual activity. Under the proposed policy, a student can be deemed to have consented through actions alone (“through clear words or actions”). Requiring a verbal, affirmative “yes,” provides a bright line rule for determining whether consent exists. At a minimum, the policy should make clear that actions alone cannot determine “consent” to sexual activity.
The proposed policy correctly seeks to explain that the absence of a “no” is not the same as receiving a “yes.” Although this distinction is appropriate, the policy as drafted is not clear. Currently, the policy explains that “effective consent” must be “active” and that “silence or passivity does not constitute Effective Consent.” The term “passivity,” however is left undefined. This term should be clarified. This sentence should also be removed: “Relying solely on non-verbal communication during sexual activity can lead to misunderstanding and may result in a violation of the policy.” There is no evidence that rape or sexual assault result from “misunderstandings” between victims and perpetrators. Suggesting that rape or sexual assault could just be a “misunderstanding” undermines the culture of reporting that the university intends to create. Also, if the term “consent” is amended to make clear that active consent must be delivered – voluntarily – “through clear words,” the offending sentence can be easily omitted.
Similarly, the proposed policy states that the university “urges students to communicate with each other throughout any sexual encounter to ensure that any progression of sexual activity is done with Effective Consent.” This phrasing should be stronger. The university must REQUIRE – not urge – verbal, active consent, communicated “through clear words.”
The proposed policy is also unclear about who should be seeking consent. The beginning of the section states that “the person who wants to engage in a specific sexual activity” should obtain effective consent “before initiating that activity.” However, later, the policy inexplicably states that “it is the responsibility of the person withdrawing Effective Consent to communicate . . . that he or she no longer wishes to engage in the sexual activity.” It should be the responsibility of all parties to ensure that consent initially given continues. As currently written, the sentence undermines the concept that the sexual activity must be mutually-agreed upon. The following sentence may better reflect the intent of the policy: “If at any point in a sexual interaction involving Sexual Contact or Sexual Intercourse, uncertainty exists as to whether a person has withdrawn consent, it is the responsibility of the still-consenting person to clarify whether Effective Consent still exists.”
The policy should also make clear that an incapacitated person is not capable of giving Effective Consent. Although this idea is included in the proposed policy, the language is overly complicated (“Effective Consent cannot be gained by taking advantage of the Incapacitation of another. . .”). As drafted, one may question what it means to “take advantage” of another’s incapacitation. It makes the policy less clear-cut and more difficult to implement. The policy should therefore state clearly that an Incapacitated Person cannot give consent consistent with the Student Sexual Misconduct Policy.
With respect to incapacitation because of drugs or alcohol, the proposed policy rightfully states, very clearly, that “being impaired by alcohol or other drugs is no defense under this Policy.” To reiterate and support that point, the proposed policy should amend the warning that “the use of alcohol or other drugs can lower inhibitions and create confusion as to whether Effective Consent is present.” Again, there is no evidence that sexual misconduct occurs as a result of “confusion” or “lowered inhibitions.” Statements such as this one may also discourage reporting, as one of the reasons survivors tend not to report is fear of victim blaming. To the extent that the university would like to issue a warning or signal that students should be cautious about using drugs and/or alcohol, the policy might be amended to read: “Alcohol and drugs can be used to facilitate sexual misconduct by incapacitating victims.”
In the “Rules to Remember” concerning Effective Consent, the university should add the following: “Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another person or persons.” This is an important part of the proposed policy that deserves re-emphasis.
One of the “Rules to Remember” that appears unduly confusing is mentioned in the last point: that consent will be evaluated based on an objective standard unless it is based on a subjective standard. The proper standard should be a reasonable person. It is difficult for any decision-maker to ever determine what a specific person concluded since, as Justice Ruth Bader Ginsburg recently pointed out, the decision-maker cannot know what it is another person’s mind. The caveat that a subjective standard will be used “in the context of certain long-term relationships where the evidence shows that the parties have an established pattern of communicating consent that deviates from the objective standard” is not enough to justify use of a subjective standard. Each student, regardless of the relationship to the accused, should have the same protection of the policy. Everyone should be held to the same standard and should have to obtain Effective Consent, as defined in the policy, every time one engages in sexual activity.
The proposed definition of sexual exploitation includes “knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV.” It should be noted in the policy that discrimination against persons with sexually transmitted infections or with HIV is not permitted by the university. It may be useful to explain what type of conduct constitutes sexual exploitation in this context and whether and under what circumstances knowledge of the health status of one’s sexual partner constitutes a “defense.”
The university should consider clarifying that a Hostile Environment can be created online.
Intimate Partner Violence
It is not clear from the policy what distinguishes intimate partner violence from the definition of domestic violence. This should be clarified, but in addition, the policy should state as an initial matter that no one in the U.S. has the right to hit, strike, intimidate or physically, mentally, or emotionally abuse an intimate partner, including a spouse.
The definition of “complicity” should be explained in greater detail to make clear that is it not referring to a victim’s or a complainant’s so-called “complicity” in the alleged sexual misconduct (i.e. victims cannot be complicit in their own sexual assault).
It should be noted that although students “generally can avail themselves of any of these options [detailed in the policy] in any sequence at any time,” that they will NOT be able to make a report to a “responsible employee” and then decide to keep the report confidential. As confidentiality may be of paramount interest to some students, there should be some mention of confidentiality at the outset of this section. Perhaps the section could start with a chart or infographic explaining reporting options, including who someone can report to – that person’s name if known – and whether or not that person is a confidential employee. However the information is presented, it should explain clearly that the only way to a student can control whether any information will be confidential is by reporting to certain “confidential university employees” or to another individual who, under state law, cannot disclose this information, such as a confidential crisis counselor. Care should also be taken to distinguish the Title IX process versus the criminal process.
The inclusion of a sub-section on obtaining immediate assistance, including emergency medical attention through Sexual Assault Nurse Examiners, can be extraordinarily helpful to students. It is important however to convey to students that seeking this assistance is an act of self-care, and thus self-empowerment, even in the aftermath of trauma. The tone of the policy should therefore be reconsidered (in this section as well as throughout the document). For example, instead of stating that sexual misconduct “can leave students feeling powerless,” perhaps the university could state: “survivors of sexual misconduct can obtain several types of services and support to meet their immediate physical and/or emotional needs.” Survivors of sexual misconduct may experience a range of emotions following an incident (which may or may not include powerlessness). To the extent that the tone of the policy can support empowerment, versus reemphasizing the feelings of powerlessness or helplessness that victims are “supposed to have” (which may also color how decision-makers determine the veracity of victims’ complaints), the policy may more effectively support a “culture of reporting.”
The policy should make clear that making a report of sexual misconduct to the university is not the same as making a complaint. Although these different actions are discussed in Section IV.D.2 and Section IV.E.2, it should be made clear in the introductory section as well as in Section II.D (“WHEN does this Policy apply?”), that reporting an incident and making a complaint are distinct and have different consequences. It should also be made clearer that by reporting to the university, the Dean may file an Administrative Complaint without the student survivor’s consent in certain circumstances.
The introductory section of the policy should also make clear that although anonymous reporting is an option, reporting anonymously hampers the ability of the university to investigate the complaint. This point is made more clearly in Section IV.E.2, but the point should be reiterated in the interest of public safety.
With respect to No-Contact Orders, the policy should clearly state in both Section IV.C and in Section IV.D.1 how No-Contact Orders issued by the Office of the Dean of Students differ from Protective Orders issued by a judge, in particular how these orders are enforced, by whom, and under what circumstances (may campus police enforce a No-Contact Order in an emergency situation?). In describing the process by which a student obtains a Protective Order, the policy should avoid discussing what a judge “believes” and use less-loaded terminology, like “if a judge makes a finding.”
An infographic or a flow chart explaining the differences between the formal and informal resolution processes would be helpful.
Formal Resolution Process
The obligations of the accused and the accuser to participate in the investigation should be clearly stated, as well as the consequences for failure to cooperate. The policy should also allow both parties to request that an investigator consult certain experts and should allow both parties to agree on the experts consulted. As drafted, the policy gives the investigator complete control over when experts need to be consulted as well as which experts may be consulted. It is also unclear what qualifies as an “informal” consultation with an expert or how either the accused or the accuser would have a full and fair opportunity to challenge the conclusions of such an “informal” consultation.
With respect to sanctions, the inclusion of community service as a sanction is inappropriate to address any finding of responsibility for sexual misconduct – defined as sexual assault, sexual exploitation, sexual harassment, intimate partner violence, domestic violence, or stalking. The sanction of community service will never be commensurate with the seriousness of an act of sexual misconduct. Similarly, the university should not consider completion of an educational or training program an appropriate sanction for sexual misconduct that involves any use of force or coercion. Under other circumstances not involving force or coercion, a remediation program, versus an educational or training program, may be appropriate depending on the specific finding of the Standing Review Committee on the Investigator’s Report.
The policy sets out how the Sexual Misconduct Board (SMB) Hearing Panel must determine the appropriate sanction: by considering “whether a given sanction will (a) bring an end to the Policy violation in question, (b) reasonably prevent the recurrence of a similar violation, and (c) remedy the effects of the violation on the Complainant and the University community.” It would be helpful, however, if the policy specified the factors the SMB Hearing Panel should use to guide its deliberation. For example, the policy should specify the factors the panel should consider when deliberating whether a particular sanction would reasonably prevent recurrence of a similar violation.
The university should consider whether a student should be able to appeal the imposed sanction. Although Title IX does not require a school to have an appeals process, the Office for Civil Rights at the Department of Education recommends an appeals procedure, especially in cases where “a sanction is substantially disproportionate to the findings” (April 2014 FAQ). At the very least, there should be some internal review of the sanction before it is imposed by the SMB Hearing Panel. The Investigator’s Report is reviewed by the University’s Office of the General Counsel and the Standing Review Committee, yet no other body reviews the sanction that results from a finding that the policy has been violated.
The proposed policy specifies that in cases of suspension or expulsion, the University Registrar will place a notation on the Respondent’s transcript reading “Disciplinary Suspension” or “Disciplinary Expulsion.” The university should consider including that the suspension or expulsion was for a violation of the Student Sexual Misconduct Policy. It should also consider making a transcript notation in every case of a policy violation, whether or not it resulted in a suspension or expulsion.
The policy should lay out the specific set of qualifications that the Title IX coordinator, Investigators, and any other individual involved in the conduct of an investigation and/or resolution of a complaint under this policy, must hold. At a minimum, all of these individuals should have a demonstrated background or understanding of gender-based violence. In addition, these individuals should receive appropriate training as described in Department of Education’s guidance on Title IX and Sexual Violence issued on April 29, 2014. The university should also consider including a mechanism to assess what these individuals have learned at these trainings before they serve in the process of investigating or resolving complaints. It is important for this information to be outlined in the policy so that students entering the process can have confidence in the fairness of the process itself and know that the individuals they will be working with are knowledgeable of gender-based violence and trauma as well as the administrative processes outlined in the Student Sexual Misconduct Policy.
Although the current infographic is a good way to make the policy more accessible to students, it is not organized to clearly identify all of a student’s options following an incident of sexual misconduct, nor does it clearly state the consequences of each option. For example, the current infographic encourages reporting to police immediately after an incident as Step 1. However, it does not discuss the consequences of reporting to police until Step 3 (on a different page of the infographic) and even then the consequences are discussed in an abbreviated form that does not provide adequate information to a student, let alone to a student survivor who may be looking for quick guidance in the aftermath of a significant trauma. For example, it is unclear from the infographic how reporting to police will impact one’s ability to file a confidential complaint with the university. The infographic does refer to other, more detailed resources. However, to the extent that this key information can be condensed and added to the document itself, the infographic would be a more useful resource to the campus community.
You can submit comments here. The public comment period ends on Saturday, December 20, 2014. At that time the comments will be reviewed by the UVA administration, and will help shape the new policy.
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