Login | January 23, 2021

Handlling student-on-student sexual assault on campus

William E. Blackie

Special to the Legal News

Published: May 2, 2017

In recent years, there has been an alarming rise in student-on-student sexual violence on college campuses across the nation. In fact, nearly one in four women are sexually assaulted while in college, according to a recent report by the Association of American Universities.

Sexual violence raises a number of issues for colleges and universities that extends far beyond those associated with sexual harassment. Although harassment generally falls within the scope of campus policies and procedures, incidents of sexual assault may constitute criminal offenses, require medical treatment and raise concerns about reporting, recordkeeping, police involvement and media attention.

As a result, administrators often find themselves caught in a difficult position – having to act promptly, effectively and fairly, while balancing and protecting the interests of the victim, accused, other students, parents, the school and the public. These interests are often at odds with one another, which leads some to take an “I’ll deal with it when I have to” approach – or, worse yet, “I hope it won’t happen here.”

However, these head-in-the-sand attitudes rarely lead to good outcomes. Educational institutions taking this sort of approach often end up in the headlines when forced to pay huge monetary settlements or on the wrong end of massive jury awards. The key to avoiding such an outcome is preparation.

Having Effective Policies in Place

Long before any allegation reaches a school official, there should be student code of conduct and sexual misconduct policies in place that address critical issues, including:

• Clearly defining what constitutes sexual assault, what actions violate the student conduct code and the consequences of violating those rules;

• Clearly identifying a Title IX coordinator and other school officials responsible for receiving complaints of sexual assault, and how a complaint should be filed;

• Identifying any external persons/agencies that must be notified of the allegations;

• Describing the rights and expectations of both the victim and accused during the investigation;

• Ensuring the expected timeline for conducting the investigation will be prompt and efficient;

• Describing the level of confidentiality that will, or legally can, be afforded to those involved; and

• Identifying the outcomes following a determination, including the process of implementing any disciplinary measures.

Instituting Regular Communication with Stakeholders

Sexual misconduct and harassment policies have no meaning if they’re not available to and read by students, teachers, administrators and those who have contact with students, such as coaches and volunteers. Students should understand what is and is not acceptable, and what to do if ever a victim or witness to sexual violence.

Social media platforms are an excellent avenue for publicizing this information and providing preventive suggestions. Regular, ongoing training should also be held for faculty and staff to clearly outline everyone’s responsibilities and the consequences for violating them.

Conducting Thorough Investigations

When conducting an assault investigation, it’s important to remember three key points – be prompt, thorough and fair. Therefore, the first – and perhaps most important – decision is to identify an individual who can meet these requirements and conduct the investigation. The investigator should be specifically trained on investigating sexual assault issues, which are more complicated and sensitive than many other issues.

Responding to Sexual Assault Allegations

Once a complaint is filed, decisions must be made immediately on limiting contact between students and possibly even instituting a temporary suspension. Local authorities may need to be contacted, depending on the nature and severity of the allegation and state laws. Have an action plan in place to interview the victim, accused and any witnesses.

With a “fair” investigation, there is no preconceived notion of the outcome, and the victim and accused are treated equally. For example, if victims are permitted to have their parents present during an interview, the accused should be given the same consideration. For those who must comply with Title IX, we expect a renewed emphasis by the Office of Civil Rights to ensure the accused is treated no less fairly than the victim.

Be sure to remind all interviewees of the college’s policy prohibiting retaliation for making a complaint and/or participating in the investigation. In addition, avoid the common mistake of victim blaming. For example, don’t ask questions of this nature:

• Why didn’t you tell him/her to stop commenting on your body?

• Why did you wait so long to report this?

• Were you flirting with the respondent?

• What were you wearing?

These questions imply the victim may somehow be responsible for the assault. Instead, focus on asking open-ended questions. Once the facts have been obtained, more focused questions can be used to clarify specific points.

William Blackie is Of Counsel at the Cleveland office of Fisher Phillips, a national management-side labor and employment law firm. His practice focuses on the areas of municipal, public and school law, as well as labor and employment litigation.