Last year, the University of Kentucky got 159 complaints about student sexual assault. Fewer than five of them went to a disciplinary hearing.
The year before was similar: 153 student complaints, but only six hearings.
After a year of work and countless meetings, UK has adopted new rules for those hearings. But advocates for victims fear those controversial changes will further discourage student victims from coming forward. Already, the vast number of student reports of sexual assault come not from students but from official “reporters” such as faculty and staff. Amid the fraught issue of campus sexual assault, advocates worry these latest moves could chill even those small numbers.
“You are taking victims’ power away, and that’s very scary because the process is already hugely traumatic for survivors,” said Meghan Wright, a campus assault survivor who serves on Attorney General Andy Beshear’s Survivor’s Council. “It’s good they’re creating a climate that involves faculty and staff, but the fact that students are not reporting means there hasn’t been that carryover of creating a climate of victim support where victims feel like they’ll be heard and protected. “
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UK’s hearing rules were originally set up under Obama administration guidelines; the new rules, adopted June 18, stem from guidance from U.S. Department of Education Secretary Betsy DeVos and top officials, who expressed concerns about whether false reports were as much of a problem as sexual assault. Most research asserts that one in five college students will be sexually assaulted over the course of their college career.
In a campus-wide email, UK President Eli Capilouto said the goal was fairness. “These are tough, often complicated issues with which the entire higher education community is struggling,” he said. “Our goal in this policy, and the way we implement it, is to be fair to all concerned; clear and consistent in application; and compassionate to all of those impacted.”
The new rules follow many of the same procedures, in which a victim of sexual misconduct, ranging from stalking to rape, would make a complaint to the Office of Institutional Equity, which investigates the complaint. Then, if warranted, the case would be put before a three-person panel of university employees. The panel would still use the “preponderance of evidence,” with at least 50.1 percent of the evidence showing that something happened. This is the standard for civil trials, while “beyond a reasonable doubt,” is used in criminal proceedings.
The changes include allowing both accused and accusers to bring lawyers to the hearing, and allowing both lawyers to participate. The three-person panel now must come to a unanimous judgment. If the panel is divided, the accused is found not responsible and there can be no appeal.
Wright and others are most upset with a big change: Victims are no longer allowed to appeal the decision, only the accused can.
Daniel Carter, the CEO of Safe Campuses, a consulting company that assists colleges with safety issues, including sexual assault, said he thinks UK went too far in the direction of DeVos’ guidelines and that rule will be legally challenged because the federal Clery Act, which oversees crime reporting on college campuses, requires parity for victims and the accused, including the ability to appeal. He thinks it also violates Title IX, the federal law that guarantees gender equity in education.
“Even if it’s their ( the Department of Education’s) interpretation, they’d still be asking schools to violate another federal law,” he said. “I think it’s an incorrect interpretation of Title IX.”
UK spokesman Jay Blanton said that guidance from the U.S. Office of Civil Rights permits limiting the appeals process to the respondent only, and the Clery Act requires only notification of the appeals process to both parties if it’s offered.
“All of which is part of a thoughtful, intentional effort to create a balanced approach to this issue,” he said. “We want a community where victims are encouraged and supported in coming forward. We also want a system where there is due process and fairness for all involved. That’s a tough balance to achieve. We’ve sought to do that in this policy, which has received input and guidance from faculty leaders and the entire campus.”
Experts say UK is one of the first schools to make changes responsive to the new guidelines. The changes come after the school already generated national headlines over its decision to sue its own student newspaper, which was requesting documents related to a case in which a professor left campus amid a sexual assault investigation involving a graduate student. UK won the first round of the case, which is now under appeal.
#MeToo and campus sexual assault
As the national #MeToo movement focuses new attention on campus sexual assault, UK students appear to be willing to tell someone about assault, but not through official channels.
UK student surveys between 2014 and 2016 reported between 800 and 1,000 sexual assaults — much higher than the number of formal complaints. The surveys were stopped in 2016. Blanton said the survey was stopped for review, but is scheduled to continue for another two years.
UK’s Office of Institutional Equity, otherwise known as the Title IX office, now depends on official reporters who see something or are told something they believe should come to the Title IX office’s attention.
“Almost all of these are from official reporters, we don’t have very many self reports,” said executive director Martha Alexander. “I think one thing that people assume about this process is that once we get a report we do an investigation that will go to a hearing, and that’s not what happens. We get the report then we reach out to the complainant to see what they need.”
Most students choose to find a quiet solution, possibly academic accommodations such as moving dorms or getting a deadline extension, Alexander said. There are numerous reasons that students don’t want to officially prosecute an assault case that may have involved a fellow student or alcohol.
“There’s a lot of them who don’t want to feel responsible for making the respondents have some kind of punishment, or people don’t want families and friends to know,” she said.
Mandatory reporting was set up to help victims find the campus resources they need to heal, rather than to only pursue formal justice, said Emily Postel, a post-doctoral fellow at UK’s Center for Research on Violence Against Women, who used to work in the University of Delaware’s Title IX office. She focuses on the role of victims in the U.S. criminal justice system, and has found herself frequently acting as an informal adviser and mandatory reporter for students who come to her after being sexually assaulted.
“I think we are so focused on hearings and policies and procedures that we are forgetting that is not what the vast majority of students say they want in seeking justice,” she said. “To me, the fact that our numbers show that people are accessing the Title IX office and their cases are being closed without using the hearing process is a really powerful statement. Because people only talk about the hearing process, that’s what people think the Title IX office means. There are so many other ways Title IX does and can support student survivors and we miss that when we focus so much on policies and procedures.”
‘Looking out for campus survivors’
Postel said she has not yet studied UK’s new rules in detail, but thinks it’s fair to question what the long-term results may be.
“I think we should be looking out for campus survivors to make sure we are not creating unintended consequences,” she said. “I think the university should be asking these questions.”
Peter Lake, a professor at Stetson University in Florida and one of the nation’s top Title IX experts, said he’s not surprised by UK’s numbers.
“I think the public thinks Title IX is ramping up, but it’s actually a lot of requests for no-contact orders, or remedial type changes, like class changes,” he said. “People are reluctant to use the full blown grievance procedure for a lot of reasons that are as individual as the people involved.”
For example, he thinks programs such as bystander intervention training, where a friend might stop a friend from leaving a party while drunk, “seems to do better than the legalistic process. I worry that we rely on grievance processes to do the work that’s needed with cultural change. The typical Title IX office is doing lots of work that’s not visible to the public but that’s showing a lot of promise.”
Daniel Carter of Safe Campuses thinks UK can easily fix the problem by allowing appeals for both parties, but says UK, like all schools, needs to look more closely at the entire culture of campus sexual assault. He noted that in the past decade, the number of Title IX complaints has more than doubled on college campuses, but the number of hearings, in which offenders are actually held accountable, has stayed relatively small.
“It’s a significant challenge,” he said.