Presentation on theme: "DINSE / KNAPP / McANDREW www.dinse.com STUDENT SEXUAL MISCONDUCT: ADDRESSING INSTITUTIONAL CULTURE AND COMPLIANCE NACUA FEBRUARY 2014 CLE WORKSHOP FRIDAY,"— Presentation transcript:
DINSE / KNAPP / McANDREW www.dinse.com STUDENT SEXUAL MISCONDUCT: ADDRESSING INSTITUTIONAL CULTURE AND COMPLIANCE NACUA FEBRUARY 2014 CLE WORKSHOP FRIDAY, FEBRUARY 29 – SATURDAY, MARCH 1 HILTON DOWNTOWN MIAMI, FL Campus SaVE Act: What You Need to Know Jeffrey J. Nolan, Esq. Dinse, Knapp & McAndrew, P.C. Dorian Van Horn Sigma Threat Management Associates
www.dinse.com Agenda Background of Campus SaVE Act Codification of portions of the "Dear Colleague" Letter Addressing domestic/dating partner violence and stalking Negotiated Rulemaking Update Practical Challenges
www.dinse.com Violence Against Women Act (1994) Designed to improve criminal justice response to violence against women by, for example: strengthening federal penalties for repeat sex offenders creating a federal rape shield law, which is intended to prevent offenders from using victims past sexual conduct against them strengthening victims ability to obtain/enforce protection orders
www.dinse.com Violence Against Women Act (1994) Designed to improve criminal justice response to violence against women by, for example: Funding training for police and judges regarding domestic and sexual violence establishing the National Domestic Violence Hotline developing coordinated community responses to prevent and respond to violence against women
www.dinse.com Campus Sexual Violence Elimination (Campus SaVE) Act Part of Violence Against Women Reauthorization Act (VAWRA) of 2013 Amends HEA to improve education and prevention related to campus sexual violence, domestic violence, dating violence, and stalking VAWA comes to campus/Title IX meets Clery Effective March, 2014/October, 2014 ASR See 20 U.S.C. § 1092(f)
www.dinse.com Keeping Perspective COMPLIANCE IS IMPORTANT, BUT PREVENTION AND RESPONSE IS MORE IMPORTANT
www.dinse.com New Policy Requirements Each IHE receiving federal funding under HEA must develop and distribute in its Annual Security Report a statement of policy regarding: – The institutions programs to prevent domestic violence, dating violence, sexual assault, or stalking; and – the procedures that the institution will follow once an incident of domestic violence, dating violence, sexual assault, or stalking has been reported
www.dinse.com New Policy Requirements Several specific procedural protections/statements must be included in 2014 ASR Some were derived or adapted from April 2011 DCL Applicable to cases involving student AND employee complainants Should (now) adapt student and HR policies to dovetail with ASR statements
www.dinse.com New Policy Requirements ASR must include statements that: – covered disciplinary proceedings will provide a prompt, fair and impartial investigation and resolution – such proceedings will be conducted by officials who receive annual training on issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability
www.dinse.com New Policy Requirements ASR must state that both parties are entitled to same opportunities to have others present during disciplinary proceedings – including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice Question: Does that include legal counsel? Appeal issues should also be considered
www.dinse.com Educational Requirements Campus SaVE requires description of education programs to promote awareness of offenses of DV, DV, SA and stalking Requirement includes several specific mandates of what must be covered in: – primary prevention and awareness programs for incoming students and new employees – ongoing prevention and awareness campaigns for students and faculty
www.dinse.com Campus SaVE Definitions/ Educational Requirements For Clery Act crime statistics reporting purposes, domestic violence means crime of violence committed by spouse, cohabitant, parent of victims child, or similarly situated person – as relationships/protections are defined under state domestic or family violence laws However: look to state law definition for campus educational program purposes
www.dinse.com Campus SaVE Definitions/ Educational Requirements For Clery Act crime statistics reporting purposes, dating violence means violence committed by a person – Who is or has been in a social relationship of a romantic or intimate nature with the victim – Where the existence of such relationship is determined based on consideration of: Length and type of relationship and Frequency of interaction between persons involved Again, look to state law definition for campus educational program purposes
www.dinse.com Campus SaVE Definitions/ Educational Requirements For Clery Act crime statistics reporting purposes, stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to: – Fear for his or her safety or the safety of others; or – Suffer substantial emotional distress Again, look to state law definition for campus educational program purposes
www.dinse.com Campus SaVE Required Curricula Regarding safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of a covered offense against another person Regarding information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks
www.dinse.com Best Practices Advice Campus SaVE directs Department of Ed to seek advice and counsel of DOJ and HHS concerning development of and dissemination to IHEs of best practices info about preventing and responding to incidents of DV, DV, SA and stalking To include elements of institutional policies that have proven successful based on evidence-based outcome measures
www.dinse.com DV, DV & Stalking Resources DOJs Office on Violence Against Women (http://www.ovw.usdoj.gov/publications.html)http://www.ovw.usdoj.gov/publications.html Stalking Resource Center (http://www.victimsofcrime.org/our- programs/stalking-resource-center)http://www.victimsofcrime.org/our- programs/stalking-resource-center Centers for Disease Control and Prevention (http://www.cdc.gov/violenceprevention/intimat epartnerviolence/teen_dating_violence.html)http://www.cdc.gov/violenceprevention/intimat epartnerviolence/teen_dating_violence.html National Criminal Justice Reference Service (https://www.ncjrs.gov/teendatingviolence/)https://www.ncjrs.gov/teendatingviolence/
www.dinse.com Domestic Violence Statistics Nearly 5.3 million intimate partner victimizations occur each year among U.S. women ages 18 and older. This violence results in nearly 2 million injuries and nearly 1,300 deaths (CDC 2003). Estimates indicate more than 1 million women and 371,000 men are stalked by intimate partners each year (Tjaden and Thoennes 2000b).
www.dinse.com StatisticsDomestic Violence Most domestic violence incidents are never reported Women ages 20 to 24 are at greatest risk of becoming victims of domestic violence One in 4 women will experience domestic violence during her lifetime Women are more likely to be killed by an intimate partner than men Every year, 1 in 3 women who is a victim of homicide is murdered by her current or former partner Domestic violence is most likely to occur between 6 p.m. and 6 a.m. » Safe Haven 2012
Domestic Violence Statistics Nearly 1/3 of American women report being physically or sexually abused by a husband or boyfriend at some point in their lives. In over 90% of all domestic violence incidents, crimes are committed by men against women.
www.dinse.com Domestic Violence Statistics During the 6 months following an episode of domestic violence, 1/3 of battered women are victimized again. About half of men who beat their partners do so at least 3 times per year.
www.dinse.com Intimate Partner Homicides 1/3 of all female homicide victims are killed by husbands, ex-husbands, boyfriends or ex- boyfriends. More than twice as many women are killed by their husbands or boyfriend as are murdered by strangers. On average, more than 3 women are murdered by their husbands or boyfriends in this country every day.
www.dinse.com Obstacles Facing College Students Sometimes feel trapped by the social networks and/or closed environment Students may feel isolated from their personal support networks and resources – Away from home – International students could be particularly isolated
www.dinse.com Obstacles Facing College Students Due to somewhat isolated atmosphere of a college campus, it may be easier for abusers to stalk/control their partner – Social networking sites provide easy access for abusers to control – Schedule patterns (class/library/dining hours) provide opportunities to stalk and control
www.dinse.com Investigating Domestic/Dating Violence If there is suspected strangulation, contact medical Strangulation has only recently been identified as one of the most lethal forms of domestic violence: unconsciousness may occur within seconds and death within minutes. When domestic violence perpetrators choke (strangle) their victims, not only is it a felonious assault, but it may be an attempted homicide. Strangulation is an ultimate form of power and control, where the batterer can demonstrate control over the victims next breath; having devastating psychological effects or a potentially fatal outcome. – NFJC- Training Institute on Strangulation Prevention
www.dinse.com Investigating Domestic/Dating Violence Strangulation is, in fact, one of the best predictors for the subsequent homicide of victims of domestic violence. One study showed that the odds of becoming an attempted homicide increased by about seven-fold for women who had been strangled by their partner (Journal of Emergency Medicine, 2008). Victims may have no visible injuries whatsoever, yet because of underlying brain damage due to the lack of oxygen during the strangulation assault, they may have serious internal injuries or die days, even weeks later - NFJC- Training Institute on Strangulation Prevention
www.dinse.com Continuum of Stalking Behaviors Benign unwanted contacts to communicate a message Harassing contacts to frustrate/annoy the person Threatening contacts to make the person fearful Property damage Violence against the person/3rd persons 27
www.dinse.com Stalking and Intimate Partner Femicide* 76% of intimate partner femicide victims have been stalked by their intimate partner 67% had been physically abused by their intimate partner 89% of femicide victims who had been physically assaulted had also been stalked in the 12 months before their murder 79% of abused femicide victims reported being stalked during the same period that they were abused 54% of femicide victims reported stalking to police before they were killed by their stalkers Stalking Resource Center
www.dinse.com Stalking Statistics Persons aged 18-24 years experience the highest rate of stalking. 3 in 4 stalking victims are stalked by someone they know. 30% of stalking victims are stalked by a current or former intimate partner. 46% of stalking victims experience at least one unwanted contact per week. 1 in 4 victims report being stalked through the use of some form of technology (such as e-mail or instant messaging). Stalking Resource Center
www.dinse.com Intimate Relationship Stalking Overview Motives for Conducting Stalking Behaviors To initiate a relationship To reengage a relationship To vent anger/frustration To get even for being dumped To intimidate/control To psychologically terrorize
www.dinse.com Stalking Behaviors Showing up at locations (residence, work, health club) Letters, packages, gifts Texts, Faxes, E-mails, phone calls, blogs Social media Vandalism and property damage Assaults Surveillance Abduction Murder
www.dinse.com Stalking Behaviors Sending dead flowers or plants to person Mailing letters with frightening messages Leaving intimidating voice messages Letters or messages to persons superiors or colleagues discussing: – Private matters – Romantic acts – Body parts » National Assessment Service 32
www.dinse.com Other Technologies In Stalking GPS Onstar Cell phones Video surveillance Key logger
www.dinse.com Investigating Stalking Ask complainant what evidence she might have – Emails, Text Messages, Photographs – Facebook – Medical – Witnesses – Ask about all prior concerns Victims sometimes change their storyWork as if the victim is unable to contribute Document everythingif you didnt document-it didnt happen
www.dinse.com Sexual Assault Victim Responses Crying, laughing, failure to recall events in order, unwillingness to talk about the event, victim still in contact with suspect after the eventall NORMAL reactions. Victims deal with the trauma in many ways WHY??? – Humiliationdid they cause the eventNO Who will believe them? The victim might have been drinking May have had sex with the suspect in the past Victim willingly went with the suspect Social stereotypes Medical procedures (rape kit, disease) – Shamewho knows? who will know? (parents, roommates, significant other)
www.dinse.com DV, DV, SA & Stalking / Threat Assessment Interaction May be TAM overlap in DV, DV, SA & stalking cases Threat assessment and management (TAM) teams can be valuable resources Avoid silo mentality Report to and utilize TAM team as necessary in conjunction with disciplinary processes
www.dinse.com Managing Investigations Working with local/campus law enforcement Meet with them before you have an issue Understand there will be different standards Understand what everyone needslaw enforcement will likely want to conduct investigation prior to campus investigation – What can you provide to assist? – Taking interim measures on campus If the situation gets more involved than you think you can deal withcall in professionalnever worry about asking for help
www.dinse.com Title IX Enforcement Context OCR: -Investigates individual complaints -Conducts agency-initiated compliance reviews In theory, negative OCR findings can result in: -loss of federal funding through Dept. of ED proceedings, or referral to DOJ for litigation -Practically, voluntary remedial actions are negotiated, and become part of the evolving framework practitioners work within
www.dinse.com Clery Act Enforcement Context Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) (Clery Act) applies to IHEs that receive federal funds Detailed requirements explained in Department of Eds February, 2011 Handbook for Campus Safety and Security Reporting, available at: http://www2.ed.gov/admins/lead/safety/handb ook.pdf. http://www2.ed.gov/admins/lead/safety/handb ook.pdf
www.dinse.com Clery Act Requirements Policy disclosure – provide accurate statements of current security policies and practices Records collection and retention – maintain certain records and request records from local law enforcement agencies Information dissemination – provide campus community with information and disseminate that information in several ways Emergency notification, response and testing procedures
www.dinse.com Clery Act Enforcement Context Enforced by U.S. Department of Educations Federal Student Aid (FSA) Office Department has ramped up enforcement activity significantly In 2008, Eastern Michigan University paid a record fine of $350,000 Other six-figure fines have been levied since In 2012, the per-violation fine amount was increased from $27,500 to $35,000
www.dinse.com Clery Act Enforcement Context Department can base investigations on complaints from individuals, or can choose to conduct a program review Based upon violations noted in cursory checks Media monitoring Alleged under-reporting of sexual assaults is a matter of particular interest to the Department – alleged victims and victims groups have recently paired Clery Act complaints with Title IX OCR complaints
www.dinse.com Clery Act Enforcement Context In October, 2013, FSA fined Lincoln University $275,000 for various recordkeeping and policy statement violations Included $27,500 fine for Universitys failure to include statement about potential sanctions for sexual assault in its ASR Program review documents can be found at – http://studentaid.ed.gov/about/data- center/school/clery-act
www.dinse.com SaVE Negotiated Rulemaking Update
www.dinse.com Clery Act Civil Action Issues No private right of action under Act Nothing in this subsection may be construed to – (i) Create a cause of action against any institution of higher education or any employee of such an institution for any civil liability; or – (ii) Establish a standard of care. 20 U.S.C. § 1092(f)(14)(A).
www.dinse.com Clery Act Civil Action Issues Notwithstanding any other provision of law, evidence regarding compliance or noncompliance with [the Act] shall not be admissible as evidence in any proceeding of any court, agency, board, or other entity, except with respect to an action to enforce [the Act]. 20 U.S.C. § 1092(f)(14)(B).
www.dinse.com Standard of Care Issues Campus SaVE Act April 2011 DCL Negligence per se? Negligence? Custom? Lees v. Carthage College, 714 F.3d 516 (7 th Cir. 2013)