by Lauren Davis and Katherine Protil. (Supervisor/editor: Paul von Hippel.)

Introduction

When sexual assault is alleged on a college campus, there are several organizations that can respond, including the school's Title IX office or coordinator, the Office of Civil Rights in the US Department of Education, law enforcement, and various community support organizations. These organizations differ in their standards of evidence and in the actions that they can take. A response by one organization does not prevent a response by another, and individuals dissatisfied with the response of one organization can often appeal to another. In some cases, a Sexual Assault Response Team may coordinate the responses of different organizations.

Organizations that respond to campus sexual assault

On-Campus Title IX Offices and Coordinators

Schools' responses to accusations of sexual assault are guided by Title IX regulations (Clark and Hauser, n.d.). Title IX is a section of federal education legislation that was passed in 1972 to prevent universities that receive public funding from discriminating against students based on sex (Lhamon, 2014). Discrimination is defined to include the existence of a hostile environment exists where a student cannot participate in programs or learning because of their sex. Title IX’s standard states that “severe or pervasive sexual harassment creates a hostile environment for students and needs to be remedied and prevented from occurring" (Title IX on Campus, n.d.). Additional federal guidance from the Department of Education has made it clear that this entails investigating cases of sexual assault, harassment, and misconduct, and that failure to do so can result in the loss of all federal funding (NWLC, 2016).

Every institution of higher education is required to have a Title IX coordinator, and some larger institutions create Title IX offices with multiple staff. Although Title IX staff have a variety of responsibility which include investigation of sexual assault allegations, Title IX coordinators or offices are not required to have training in interviewing victims of sexual trauma (The White House, n.d., 11-12).

Investigation Process

To initiate a Title IX investigation, a student must report directly to the Title IX coordinator or office. If the student reports to law enforcement (including campus police), counseling services, or health services, those entities are not required to notify the title IX coordinator (Title IX on Campus, n.d.). If the incident occurs off campus, the school must follow its code of conduct and exercise its jurisdiction if it does so in other physical altercations between students off-campus. Neighboring sidewalks or buildings that are located between breaks in campus property are also considered to be a part of campus jurisdiction. Universities are also required to begin an investigation if staff members hear that a sexual assault has taken place (Know Your IX, n.d.).

Schools are required under Title IX to create and disseminate information about their complaint and investigation process for cases of sexual assault. However, schools are given a high level of freedom when constructing these policies. They must insure that the investigation is "prompt and equitable" and that the results of investigations are provided to both the complainant and respondent in written form at the conclusion of the investigation. However, the actual logistics of the process are left to school administrators to decide. This freedom allows schools to tailor their complaint processes to their student body's dimensions (what may work on a traditional residential campus 1,300 students strong may be cumbersome and ineffective on a city campus hosting 50,000 students). It can be difficult, however, to compare such varied and specific policies and examine their effectiveness (Know Your IX, n.d.).

Both the accusing student, called the "complainant" under Title IX, and the accused student, called the "respondent," have equal rights throughout a university sexual assault investigation under Title IX. They are both able to present and review evidence and present and cross-examine witnesses. The complainant must “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version" (Ulrich, 2016). If appeals are a part of the university's judicial processes, both sides must have access to the appeal process, and if schools allow students to have legal representation, both students must be allowed to have an attorney present. In some cases, investigations may proceed without the consent of the complainant, as universities are obligated under Title IX to fully investigate all claims of sexual assault to keep other students safe (Title IX on Campus, n.d.). Throughout the investigation, the Title IX coordinator or office needs to frequently update the complainant and respondent about the investigation.

Title IX does not require a school to notify law enforcement, but other statutes under local, state or federal law might require a school to do so. A school’s Title IX investigation must be completed whether or not law enforcement is undergoing a separate investigation, and may come to a different conclusion than a legal investigation. If law enforcement is pursuing its own investigation, a school should not withhold its investigation until the completion of the law enforcement's investigation; however, in some instances a school may need to delay fact-finding while police gather evidence (Title IX on Campus, n.d.).

Because many Title IX staff lack training in sexual trauma, evidence gathered through interviews (often a feature of sexual assault investigations) may be unreliable and poorly recorded. Some complainants may omit information in an interview, and some Title IX offices might provide inconsistent or inaccurate summaries of interviews that work to the detriment of the complainant later in the process. In some cases, this can re-traumatize the complainant, which leads to noncooperation with Title IX staff and other parties, such as law enforcement, leaving a pool of cases that are never resolved (Dudley, n.d., 117-118). A lack of training may also lead investigators to conclude that contradictory statements by the complainant are an evidence of deceit, when in fact discrepancies in memory are a hallmark of trauma (Campbell, 2012).

Standards of Evidence

Until 2011, some higher education institutions conducted Title IX investigations under a "burden of proof" standard similar to that used in legal cases. Under this standard, the complainant must show "beyond a reasonable doubt" that the respondent has engaged in sexual assault (Department of Education, 2011).

In 2011, the Department of Education directed universities to switch from the burden of proof standard to a lower "preponderance of evidence" standard (Department of Education, 2011). Under a preponderance of evidence standard, evidence must only show that it is more likely than not that the assault occurred. Even if accusers can only show that 51% of the evidence supports their claims, higher education institutions are required to find that their complaints are valid (Know Your IX, n.d.).

Possible Outcomes

If a student reports a sexual assault, or if university officials come to hear that an assault has occurred, universities are required by law to immediately protect the complainant regardless if the investigation has been completed or a resolution is reached. Protective measures include separating the accused from the complainant, changing housing assignments, reworking class schedules, and providing counseling services (NWLC, 2016). If the investigation determines that the respondent has committed sexual assault, a school must take the necessary steps to discipline the respondent. These disciplinary measures may include changes in housing, class schedules, school-sponsored extracurricular activities, the issuance of no-contact orders, suspension, academic assignments such as essays or reports, or expulsion (Know Your IX, n.d.).

When determining appropriate punishments, a school faces the challenge of deciding how much and what type of space the complainant is entitled to when on campus. The rights of both students must be considered, including the right of "due process" for the respondent (detailed below under "Recourses Against Decisions"). Some punishments are easier to enforce than others–class schedules may be altered more easily than housing, for example. Universities may not require the complainant to pay for any accommodations (Know Your IX, n.d.).

Retaliation, Amnesty, and Conflicts of Interest

Title IX prohibits retaliation – including "intimidation, threats, coercion, or discrimination" – by students or schools against any students involved in a sexual assault investigation (Title IX on Campus, n.d.). The school must provide guidelines on reporting retaliation and make sure the guidelines are known.

Because most campus sexual assaults are preceded by drug and/or alcohol consumption (Benson et. al., 2007), there is a danger that complainants will be prosecuted for underage drinking, or blamed for contributing to their own assault by drinking. This can be a form of retaliation. To prevent it, some universities have instituted amnesty policies for underage drinking when students are reporting cases of sexual assault (LoMonte, 2013). These policies mirror amnesty policies in cases of alcohol poisoning, in which students can seek help for an intoxicated friend without facing sanctions themselves. Underage drinking amnesty policies for cases of sexual assault are sometimes supported by state law as well as school policies. Wisconsin, for example, recently passed a law preventing law enforcement from issuing an underage drinking citation to an individual seeking emergency services after a sexual assault (Wisconsin Department of Justice, 2016).

Although ideally, universities would act as neutral arbitrators of cases of sexual assault, they sometimes have incentives to minimize, suppress, or under report cases of assault. A recent study from the University of Kansas also found that universities generally under-report cases of sexual assault unless they are in the process of being audited (Yung, 2015). The legal, reputational, and financial threat of lawsuits is one such deterrent, although covering up sexual assault can lead to equally damaging publicity.

Recourse Against Decisions

Both the complainant and the respondent may pursue recourses during or after a Title IX investigation.

An increasing number of respondents who are accused of sexual assault and found at fault by their universities are responding to sanctions with lawsuits. These lawsuits often allege that schools are violating students' rights by sanctioning them after an extralegal investigation and violating their right to due process (Save Our Sons, n.d.).  Two main Supreme Court cases make due process a relevant concept for dealing with campus sexual assault. The first applies to students attending public institutes of education, who are protected by the Fourteenth Amendment by nature of their relationship with the state. In the 1975 Goss v. Lopez case, the Supreme Court ruled that any public-school student had the right to due process if they were to face losing their education. The second case, in the 1971 Wisconsin v. Constantineau case, the Supreme Court ruled that a person "has a liberty interest in protecting his good name and reputation."

In addition, if they are not satisfied with a school's handling of its responsibilities under Title IX, either the complainant or the respondent may file a complaint with law enforcement or with the Office for Civil Rights in the Department of Education

Office of Civil Rights, U.S. Department of Education

If either the complainant or the accused is dissatisfied with the response of the campus Title IX coordinator or office, they may file a complaint with the Office for Civil Rights in the Department of Education (OCR, n.d.). The OCR regulates and enforces Title IX. Documents and regulations from the OCR constitute the main administrative law surrounding the handling of campus sexual assault allegations under Title IX (Dudley, n.d., 122).

Investigation Process

By the time a case reaches the OCR, the topic of investigation has broadened. Investigation goes beyond the specific allegation of sexual assault to consider the school's response and broad systemic issues. OCR  completes a thorough investigation of the school, including the atmosphere on campus, policies and procedures, and data from the institution several years prior.

Given the breadth of the investigation, OCR cases are rarely resolved quickly. Some cases are handled after the students graduate or leave the institution. Many students are left without support and protection for long periods of time (Peterson and Ortiz, n.d., 2134-2143). Schools sometimes fail to comply with OCR investigations in a timely fashion.

The length of OCR cases has only grown in recent years. The average days it took to reach a "substantive closure" went from 379 days in 2009 to 1,032 days in 2015. One of the longest cases on record took 2,146 (Peterson and Ortiz, n.d., 2134-2143). In the last few years there has been a huge influx of cases being brought to the OCR, almost tripling the number of higher education institutions under investigation (The Chronicle of Higher Education, n.d.).

Possible Outcomes

Once finding that a university is in violation of Title IX, OCR will first attempt to negotiate a signed contract detailing remediation efforts that will be undertaken by the university. OCR will continue to monitor the institution's steps toward ending its discriminatory practices. If an institution refuses to negotiate, the OCR will first issue a Letter of Finding and then a Letter of Impending Enforcement Action. Each letter is followed by a time period in which the institution is able to enter into negotiations. If, after the second letter, the university still refuses to negotiate, the OCR will begin steps to remove federal funding from the institution and/or refer the case to the Department of Justice (U.S. Department of Education, n.d.).

Universities may also resolve a complaint at any point in the investigation process by working with the OCR and complainant to negotiate remediation efforts. The OCR must approve this move (U.S. Department of Education, n.d.).

Police and the Criminal Law System

In addition to filing a Title IX complaint (or instead of it), a student can report a sexual assault to police. There are several important differences between a police investigation and a Title IX investigation.

Definition and Standards of Evidence

Police follow criminal law, under which the definition of sexual assault is typically narrower than it is under Title IX. In Texas, for example, the criminal code defines sexual assault as nonconsensual penetration, whereas campuses typically use broader definitions that include a variety of unwanted sexual contact that can be construed as discriminatory under Title IX. See the accompanying page on Campus Sexual Assault: Definition, Reporting, and Prevalence.

Under criminal law, the accused can be convicted only if the evidence shows that it took place "beyond a reasonable doubt" (20 U.S.C. § 1681(a)). This is the highest standard of proof in sexual assault cases. It contrasts with the "preponderance of evidence" standard used in Title IX investigations, under which it is enough for accusers to prove that it is more likely than not that the assault occurred.

Criminal law typically makes no distinction between sexual assaults on a college campus and sexual assaults elsewhere in the community (Rape, Abuse, and Incest National Network, n.d.).

Investigation Process

Persons alleging sexual assault must file a report of the incident before the statute of limitations runs out. The statute of limitations varies from state; in Texas, it is 10 years. Persons alleging sexual assault may provide evidence in the form of a sexual assault forensics exam, also called a "rape kit." It is possible to receive a rape kit without filing an official report (Rape, Abuse, and Incest National Network, n.d.).

Investigations into sexual assault follow state protocols. In Texas, evidence is collected by first responders and local law enforcement about the alleged assault and reported to the District or County Attorney, who decides whether to issue a warrant for arrest. The suspect is formally charged and may be released on bail. A grand jury then decides whether or not to indict the suspect. If the individual is indicted, a court date is set, and the accused and accuser may look for legal representation (Attorney General of Texas, 2015).

Possible Outcomes

Under criminal law, the penalties for sexual assault are much more severe than the penalties that a college or university can pursue under Title IX. If enough evidence is discovered, the accused will be charged with a criminal offense, may be jailed pending trial, and if convicted may be imprisoned. In Texas, sexual assault is a first-degree felony, and can result in a prison sentence of 5-99 years. For those who have already committed a felony, the minimum jail time is 15 years. Certain cases may also result in the sentence of life without parole (The Attorney General of Texas, n.d.).

Community Organizations

Community organizations usually do not require a specific standard of evidence when providing services to survivors of sexual assault. These organizations usually focus on supporting the individual, not determining the relative validity of their claims. A plethora of community organizations dedicated to helping survivors of sexual assault and rape exist within the United States. These include domestic violence shelters, therapeutic support groups, online resource communities, on-campus support groups, advocacy organizations, and more. These groups can have a national, state-wide, or local reach, and may work to affect policies at a federal, state, or local level.

Sexual Assault Response Teams

Given the variety of organizations that can respond to allegations of sexual assault, lack of coordination can be a problem. To improve coordination. Sexual Assault Response Teams, SART, are “multidisciplinary collaborative bodies that bring together different groups that address sexual assault to work together to improve their community’s response to sexual assault victims and cases (Greeson, n.d.).” 40.1% of the stakeholders who have an active membership with SART are from colleges or universities (Greeson, n.d.), while other members range from prosecutors and law enforcement to medical staff and victim advocates (NSVRC, n.d.). Some universities have created their own trained SART composed of university staff. SART emphasizes the importance of collaboration to create actively engaged communities, including some college campuses, by supporting the “emotional, physical, psychological, and spiritual well-being of survivors" (Wesleyan University, n.d.).

References

Attorney General of Texas. "Sexual Assault: Information for Adult Survivors." https://www.texasattorneygeneral.gov/cvs/sexual-assault-information-for-adult-survivors

Benson, B.J., Gohm, C.L., Gross, A.M. (2007). College Women and Sexual Assault: The Role of Sex-related Alcohol Expectancies. Journal of Family Violence, 22(6), 341-351. DOI: 10.1007/s10896-007-9085-z

Campbell, Rebecca. "Transcript: The Neurobiology of Sexual Assault." National Institute of Justice. December 3, 2012. https://nij.gov/multimedia/presenter/presenter-campbell/pages/presenter-campbell-transcript.aspx

Clark, Annie E. and Miriam Hauser. "How To File a Title IX Complaint." Date Accessed: November 18, 2016.  http://knowyourix.org/title-ix/how-to-file-a-title-ix-complaint/

Dudley, Sara F. "Paved with Good Intentions:Title IX Campus Sexual Assault Proceedings and the Creation of Admissible Victim Statements." Golden Gate University Law Review. May 1, 2016. http://web.a.ebscohost.com.ezproxy.lib.utexas.edu/ehost/pdfviewer/pdfviewer?sid=e186be5f-c706-48f9-b5e6-eeefc493c770%40sessionmgr4010&vid=4&hid=4107

Greeson, Megan R. "Sexual Assault Response Team (SART): Functioning and Effectiveness". http://www.nsvrc.org/sites/default/files/publication_researchbrief_sexual-assault-response-team-functioning-effectiveness.pdf

Know Your IX. "Title IX: The Basics." http://knowyourix.org/title-ix/title-ix-the-basics/

Know Your IX. "Title IX in Detail." http://knowyourix.org/title-ix/title-ix-in-detail/

Legal Information Institute. "Due Process." Cornell University Law School. https://www.law.cornell.edu/wex/due_process

Lhamon, Catherine E. "Questions and Answers on Title IX and Sexual Violence." United States Department of Education, Office of Civil Rights. April 29, 2014. http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf

LoMonte, Frank. "Transparency Tuesday: Campus drinking, and how police respond, is in the national spotlight." SPLC. May 7, 2013. http://www.splc.org/blog/splc/2013/05/transparency-tuesday-campus-drinking-and-how-police-respond-is-in-the-national-spotlight

National Sexual Violence Resource Center (NSVRC). "Sexual Assault Response Team Development: A Guide for Victim Service Providers." http://www.nsvrc.org/sites/default/files/Publications_NSVRC_Guide_SART-Development.pdf

NWLC. "Title IX Requires Schools to Address Sexual Violence." June 23, 2016. https://nwlc.org/resources/title-ix-requires-schools-to-address-sexual-violence/ 

Peterson, Alyssa and Olivia Ortiz. "A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints." The Yale Law Journal. May 1, 2016. http://web.b.ebscohost.com.ezproxy.lib.utexas.edu/ehost/pdfviewer/pdfviewer?sid=6db2fc79-6d40-43ea-9abf-c8382bbb40d9%40sessionmgr101&vid=18&hid=107 

Rape, Abuse, and Incest National Network. "Drug-Facilitated Sexual Assault." https://www.rainn.org/articles/drug-facilitated-sexual-assault

Save Our Sons. "Falsely Accused? Fight and Sue." http://helpsaveoursons.com/category/be-pro-active-sue-the-girl-for-defamation-of-character/

The Attorney General of Texas. "Penal Code Offenses By Punishment Range." 2015. https://www.texasattorneygeneral.gov/files/cj/penalcode.pdf

The Chronicle of Higher Education. "Title IX: Tracking Sexual Assault Investigations." http://projects.chronicle.com/titleix/

The White House. "Not Alone: The First Report of the White House Task Force to Protect Students From Sexual Assault." April 2014. https://www.justice.gov/ovw/page/file/905942/download

Title IX of the Education Amendments of 1972. 20 U.S.C. § 1681(a)

Title IX on Campus. "What You Need To Know About Title IX." Date Accessed: November 15, 2016. http://title9.us/

Ulrich, Laura. "How colleges investigate sexual assault on campus." June 16, 2016. National Constitution Center. http://blog.constitutioncenter.org/2016/06/how-colleges-investigate-sexual-assault-on-campus/

United States Department of Education. "How the Office for Civil Rights Handles Complaints." http://www2.ed.gov/about/offices/list/ocr/complaints-how.html

United States Department of Education, Office of Civil Rights. "Dear Colleague." April 4, 2011. http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

United States Department of Education, Office of Civil Rights. "Know Your Rights: Title IX Requires Your School to Address Sexual Violence." https://www2.ed.gov/about/offices/list/ocr/docs/know-rights-201404-title-ix.pdf

Wesleyan University. "Sexual Assault Prevention and Response." http://www.wesleyan.edu/healthservices/sexualassault/sart.html

Wisconsin Department of Justice. "New Rights for Victims Under Sexual Assault Victim Amnesty Law." March 24, 2016. https://www.doj.state.wi.us/news-releases/new-rights-victims-under-sexual-assault-victim-amnesty-law

Yung, Corey Rayburn. "Concealing Campus Sexual Assault: An Empirical Examination." Psychology, Public Policy, and Law 21.1: 2015, 1-9. http://www.apa.org/pubs/journals/releases/law-0000037.pdf