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Notre Dame’s sexual assault policy changed for the better

Alex Coccia | Wednesday, September 14, 2011

This article is Part One of a two-part look into the University of Notre Dame’s Sexual Misconduct and Sexual Assault Policy. Part Two will discuss the relationship between sexual misconduct, sexual assault and alcohol and the University’s Drug and Alcohol Policy.

For citation purposes, OCR will refer to the June 30, 2011, letter from Debbie Osgood, Director of the Chicago Office of the U.S. Department of Education Office for Civil Rights, to Father Jenkins, and RES will refer to the Resolution agreed upon and signed by Father Doyle.

When the U.S. Department of Education Office for Civil Rights (OCR) completed its Title IX investigation “to examine the University’s policies and procedures relating to student-on-student (peer) sexual harassment and the University’s implementation of those policies and procedures,” media sources from ESPN to Fox News covered the story. While most of the focus of the media coverage was on the unstated link between the OCR investigation and certain cases from the previous year, little attention was given to the importance of the changes that Notre Dame agreed upon with the OCR. The changes to the University’s practices and policies include:

(1) “Allegations of sexual harassment are evaluated using a ‘preponderance of the evidence’ standard;”

(2) “Complainant’s option to pursue a criminal complaint with the appropriate law enforcement agency, to pursue the University’s disciplinary process or to pursue both processes simultaneously will be stated more prominently;”

(3) “Complainants are advised that the University will investigate allegations of sexual harassment, and take appropriate action, even if the complainant does not wish to pursue the disciplinary process, but that any response by the University may be hindered by the complainant’s wishes for anonymity and/or inaction;”

(4) “‘No contact’ orders are issued in writing to all parties to an alleged sexual assault promptly after the University receives notice of a complaint;”

(5) “Both the complainant and the accused in sexual harassment cases have the opportunity to present witnesses and other evidence, and both receive equivalent notice of the process, access to peer support, information about procedures and written notice of the outcome;”

(6) “The Code will be amended to provide for alternative arrangements for complainants who do not want to be present in the same room as the accused during the disciplinary hearing;”

(7) “Except in extraordinary circumstances (notice of which will be provided to all parties), case reviews will be resolved within 30 days of receipt of the request for review.” (All citations from RES).

Preponderance of the Evidence Standard: This is the standard used in the majority of civil cases. By this standard the criteria are met if the alleged action is more likely to be true than to not be true. One concern about using this standard for judgment is that persons falsely accused of sexual misconduct or assault could more easily be found responsible. However, “both the complainant and the accused in sexual harassment cases have the opportunity to present witnesses and other evidence, and both receive equivalent notice of the process, access to peer support, information about procedures and written notice of the outcome.” The preponderance of evidence standard does not mean that the alleged perpetrator is guilty unless proven innocent. It does, however, lessen the requirements from the “clear and convincing standard” because the “clear and convincing standard” does not appropriately address the Title IX prohibition on “discrimination on the basis of sex in any education program” (OCR). The OCR Report further states, “sexual harassment of a student creates a hostile environment if the conduct is sufficiently serious that it denies or limits a student’s ability to participate in or benefit from the recipient’s program.” The preponderance of evidence standard makes the process easier for the alleged victim in a process where previously “clear and convincing” might have been too difficult to prove when some cases have limited evidence or no witnesses.

Under the new OCR guidelines, the University will investigate allegations of sexual misconduct or assault even if the complainant does not wish the University to pursue the disciplinary process. Associate Vice President for Student Affairs Ann Firth explained that the reasoning behind this change comes from OCR’s understanding of research suggesting that sexual assaults on campuses are acts committed by a small number of people, meaning that many cases of sexual assault are committed by serial perpetrators. Therefore, the obligation to pursue a claim should not rest solely with the complainant. The University has the obligation to pursue any claim made to a non-confidential source. Confidential sources include counseling services, health services, the SOS Rape Crisis Center of St. Joseph’s County, campus ministers and rectors. Campus ministers and rectors must, however, disclose information to the University if they judge that someone is in imminent danger or if the alleged victim is a minor. Reports to rectors given by RAs and ARs are not considered confidential. The University’s pursuance of claims is focused on taking “prompt and effective steps reasonably calculated to end the harassment, [eliminating] any hostile environment and its effects, and [preventing] the harassment from recurring” (OCR).

Amendment of the Code for complainants not to be present in the same room as the accused during disciplinary hearings: This change will hopefully be a relief for certain victims who may have doubts about coming forward because of fear that they will have to be confronted by the alleged perpetrator. This change, no contact orders and arrangements for dorm transfer and schedule change, can all help the victim pursue both criminal complaint and University disciplinary process without much fear of intimidation by the alleged perpetrator. The right to face the witnesses against oneself does not apply in civil court. So any criminal proceedings pursued by the complainant will have the face-to-face confrontation requirement. But on campus, the complainant should feel safe to discuss with disciplinary personnel the details of the alleged assault or misconduct. This policy change should also help the University to conduct more detailed and fuller investigations into claims that before would have been “hindered by the complainant’s wishes for anonymity and/or inaction.”

Case reviews done within 30 days of receipt of request for review: This policy ensures that unless there are extraordinary circumstances, the review of disciplinary procedures is not going to be drawn out. If this procedure is drawn out, the victim can become disheartened, dismayed and may lose the conviction to continue aiding the review. An expedited review also allows victims the closure while a prolonged review may take a psychological toll on the academic and social lives of both the alleged victim and the accused.

Another goal of the University is to better publicize the University’s Sexual Misconduct and Sexual Assault Policy, the avenues that victims can take in filing complaints and the steps the University will take in conducting investigations. All residence halls should be informing their students about the policy and procedures. The changes that have been made to the University’s policy are voluntarily agreed upon by the University and well advised by the Office of Civil Rights, and they will make Notre Dame’s policy one of the top in the country when it comes to post-assault and post-misconduct action and investigation. An April 4, 2011, article in The Chronicle of Higher Education cites that “Data from the National Institute of Justice show that about one in five women are victims of sexual assault in college, and just over six percent of men are.” Notre Dame has the opportunity and the resources to severely decrease this statistic, a topic that will be discussed further in Part Two of this University Policy segment.

Alex Coccia is a sophomore. He can be contacted at acoccia@nd.edu

The views expressed in this column are those of the authors and not necessarily that of The Observer.