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Investigation powers strengthened under new sexual misconduct policy

By Austen Hufford, Online Editor
Published February 24, 2014

The University’s sexual assault and harassment policies are not something frequently discussed during weekend parties or in Ann Arbor cafes. For those directly impacted by these procedures, their stories and experiences with the University’s process are infrequently told. When controversies do arise, the public outcry is loud even before any facts are made public.

Since April 2011, the University has quickly created both an interim and a final Student Sexual Misconduct Policy that changed how the University deals with these allegations. During this time, the University has struggled to convey the significance of these changes to a student body, which seems most interested when bad news hits. The fast pace of these changes have also made it difficult to pursue ongoing cases during the transitional period.

More than four years after an alleged Nov. 2009 sexual assault, a Nov. 2013 letter was sent to former kicker Brendan Gibbons informing him he was found responsible by the University for violating the Student Sexual Misconduct Policy. Gibbons was permanently separated from the University in December for this violation.

Documents, including the letter, were reviewed by The Michigan Daily and first reported on in January 2014, resulting in widespread media coverage and negative attention towards the University and the Athletic Department. Many questioned why it took more than four years to expel Gibbons and wondered if his position on the football team played a role. On Feb. 19, an unknown group or individual hung a banner from Mason Hall stating, “This administration defends rapists.”

The University has not commented on Gibbons’ case specifically but has repeatedly stated the University Athletic Department has no influence in the sexual misconduct process and has pointed towards the changes in the Student Sexual Misconduct Policy. Both University President Mary Sue Coleman and Michigan coach Brady Hoke released similar statements.

The University’s sexual misconduct policy explains how the University responds internally to sexual harassment and sexual assault allegations against students, defining how the institution internally handles allegations. Though this procedure can often parallel law enforcement and judicial criminal proceedings, it operates separately.

An April 2011 mandate from the Department of Education detailed how universities must handle sexual misconduct allegations and catalyzed an 868-day marathon to update the University’s policy. Within five months of the mandate’s announcement, the University implemented its interim sexual misconduct policy in August 2011. The University then embarked on a two-year process — which brought together the directors of the Office of Student Conflict Resolution, the Office of Institutional Equity, the Sexual Assault Awareness and Prevention Center and a staff member in the Office of the General Counsel — to create the final, currently enacted policy.

This new and currently active policy took effect on Aug. 19, 2013, completely overhauling how the University had historically dealt with these allegations.

Before the new mandate

Before the interim policy was enacted, the University only sanctioned sexual misconduct perpetrators when the survivor wanted to actively pursue a case with the University’s Office of Student Conflict Resolution. This placed a high burden on survivors.

The old policy treated sexual misconduct similarly to other violations of the Statement of Student Rights and Responsibilities. The Statement details rules and procedures University students must follow and outlines 20 broad categories of violations including ones related to sexual assault, alcohol use and hazing. Not all violations are legal offenses.

OSCR is charged with enforcing the Statement, using a variety of formal and informal resolution methods to help resolve violations. If a student is found responsible or accepts responsibility for a violation, there are many possible sanctions ranging from a reflective essay to permanent separation from the University.

According to the most recent data available, almost 75 percent of alleged violations of the Statement were alcohol or drug-related. Having “restorative justice circles” or other informal resolution methods where conflicted parties can come together can seem appropriate for a someone caught drinking alcohol. When someone is accused of a more severe violation, such as rape, it is not.

A Daily article published in October 2013 detailed one survivor’s experience under the old policy. The survivor told the Daily about a “draining 12-hour process” where both the survivor and the respondent were questioned about the incident in the same room.

OSCR data shows survivors did not frequently move forward with the University process under the old policy. In the 2009 to 2010 academic year, there were only four allegations of sexual misconduct and three in the 2010 to 2011 academic year. This compares to 62 for the 2011 to 2012 academic year, the latest data available and the first year for which the interim policy was in effect. University officials, including those in OSCR and SAPAC, said at the time this increase is a direct result of the policies changes.

Noting similar trends at colleges across the country, the Department of Education issued its April 2011 mandate to ensure educational institutions were properly handling sexual misconduct allegations against students.

The mandate required schools to change their burden of proof for sexual misconduct cases to a “preponderance of evidence” standard, which means more likely than not. This is the same standard used for sexual misconduct cases against faculty and staff.

The University previously used the higher standard of “clear and convincing evidence” to determine responsibility for cases of sexual misconduct. OSCR still uses this higher standard for non-sexual misconduct violations of the Statement.

The Department of Education also instructed schools to actively investigate all allegations of misconduct against students.

An investigative model

The August 2011 interim sexual misconduct policy changed the University’s procedure from a complaint-driven to an investigative-driven model. This change shifted the burden of pushing a case forward from the complainant to the University.

The University should now investigate all cases of sexual misconduct differently than other alleged violations of the Statement, according to the interim policy.

To fulfill the new requirement, the University created a new investigative position located within OSCR and under the supervision of the Office of Institutional Equity to investigate allegations. Among other duties, OIE investigates civil-rights abuses at the University.

According to OSCR Director Jay Wilgus, OSCR did not have experience with investigations violations in this manner because OSCR generally works with all parties to come to an agreement. He added that the work of the investigator was dissimilar to the work of other OSCR employees.

Figuring out when proceedings were not well executed perfectly was one of the main goals of the interim policy. By 2012, the investigator role was moved to be under OIE’s domain so the investigator and the investigations could benefit from being in an office that does similar work.

This change was codified in the August 2013 policy. OIE has hired two full-time investigators to spearhead these sexual misconduct cases. According to Anthony Walesby, associate vice provost for academic and faculty affairs and senior director of OIE, these investigators have experience dealing with similar sexual offenses. Walesby is also the University’s Title IX coordinator and determines if a violation of the misconduct policy has occurred after an investigation.

According to Walesby, investigators reach out, if possible, to both the complainant — the person who was allegedly harmed — and the respondent, the one being accused, and both are told about the allegations. The investigators then interview them both in private and gather other evidence such as police reports or witness testimony. The complainant and respondent are never in the same room and either one can chose to not participate in the interviews.

A controversy emerged in March 2013 when The Daily reported that during the course of an investigation the University apparently learned of two possible allegations of sexual assault against one individual but did not forward this information to law enforcement until a third allegation emerged months later.

The interim policy did not mention law enforcement or police. The August 2013 policy does state that the University is “committed to appropriate coordination” and may “if requested and appropriate” share information with law enforcement and University police.

Walesby said these investigations are required by the Department of Education and that the University also wants to ensure all allegations are taken seriously.

Mandatory Reporting

University employees are classified into three separate categories for reporting sexual assault: those who must report allegations of sexual assault, those who cannot report allegations of sexual assault, and those who are encouraged but not required to report allegations. The interim policy made reporting mandatory for some University employees such as University Housing Residential Advisors and security officers.

It also clarified that SAPAC, Counseling and Psychological Services and the Office of Ombuds are three confidential locations where students can speak freely without any risk of unwanted reporting.

The mandated reported raised concern that students could unwillingly begin the process of an investigation while telling someone they trust. For example, if a student tells an RA about an incident in confidence, the RA is required to report this information to higher authorities.

SAPAC Director Holly Rider-Milkovich said first-year students are told “multiple times” about the policies and the confidential locations to prevent accidental disclosures by students.

Balancing survivor wishes and community safety

The largest change between the interim policy and the August 2013 one is how the University handles cases when the survivor does not want the University to proceed with an investigation.

Under the interim policy, an investigation could not continue after a survivor asked for it to stop or did not wish to participate. Under the current policy, if this occurs, a review panel determines if the investigation will continue. The review panel consists of a combination of law enforcement, representatives of the University community and survivor advocates, and is tasked with balancing the wishes of the survivor with the safety of the community as a whole.

Rider-Milkovich, Walesby and Wilgus said they believe this review panel is innovative and indicative of how the updated policy is unique to the University. According to them, the University could have taken a lesser policy that would have legally fulfilled the requirements.

However, the University chose to embark on the multi-year process to create a specific to their needs, though it often resulted in hours of discussion and disagreement leading up to the creation of the 20-page document. They also conducted public and private forums, consultations with survivors and interviews with previous policy makers.

Regardless of the policy’s legal lingo, members of the University community must abide by it for it to be an active agent of change.

The University has not released details about the Gibbons case or other sexual misconduct violations citing federal student privacy laws and University policies. It is not clear whether this will be the standard for all cases moving forward or if it was a decision specific to the situation.

Rider-Milkovich wrote an op-ed in the Detroit News and spoke to the University’s Board of Regents regarding her beliefs of respecting privacy and the sensitive nature of these cases. She said keeping students’ personal information private is paramount.

“I am also proud that this University has withstood tremendous pressure and not revealed private student concerns and private student information,” Rider-Milkovich said. “From my national leadership role I believe that it was the right choice to make.”

While for now it’s impossible to judge the effectiveness of the new policy, in time experiences will be shared and data made public, creating a fuller picture on the University’s progress with regard to sexual assault and harassment on campus. The first report regarding sexual misconduct cases is due for release next fall and is a requirement of the updated policy changes.

The University offers many resources for counseling and reporting for survivors of Sexual Assault. A listing of available services can be found here. In addition, the University's Sexual Assault Prevention and Awareness Center staffs a 24/7 crisis line at (734) 936-3333.


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