Sexual assault policies changed at UA

Sex-case appeal panels widened

FAYETTEVILLE -- Legal experts from outside the University of Arkansas at Fayetteville will be among those sitting on campus appeals panels that decide cases of student-on-student sexual assault.

A UA-Fayetteville policy change revamps university procedures for handling student complaints of sexual assault and sexual harassment. The revised policy also includes an expanded, 402-word definition of consent and "strongly encourages" students to intervene if they see that a sexual assault may be about to take place.

UA spokesman Mark Rushing said in an email that the new appeals process will be in place for the spring 2017 semester. It's the first time the university will have outsiders help decide cases, Rushing said.

"The University strives to ensure a process that is as fair and impartial as possible, and believes that adding a nonaffiliated individual, who is an experienced lawyer, to each panel would help achieve that goal," Rushing said, though he added that volunteers may not be available for every panel convened.

Under the old policy, the top campus administrator and top student affairs administrator decided appeals without holding a hearing. They made their decision based on a review of written materials.

Neither Chancellor Joe Steinmetz nor Vice Chancellor for Student Affairs Charles Robinson will regularly sit on the panels, Rushing said.

UA's handling of complaints has come under scrutiny, including an open investigation begun by the U.S. Department of Education's Office for Civil Rights, which has active investigations at 219 post-secondary institutions.

In August, a former student in a federal lawsuit alleged UA acted with "deliberate indifference" after she reported being raped by another student.

The lawsuit states several claims, but cited as an example of deliberate indifference the university's handling of an appeal. In the campus disciplinary case, a student was found responsible for sexual misconduct and expelled.

A criminal investigation ended with no charges ever filed.

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But in response to the student's appeal of the campus decision, a Jan. 2015 letter from UA stated he could receive his degree given that he had completed the necessary courses, so long as he fulfilled community service and counseling requirements.

UA later said the letter had been issued by mistake, though it included the signatures of G. David Gearhart and Danny Pugh, at the time the university's chancellor and top student affairs administrator, respectively. A subsequent letter upheld the initial discipline.

Rushing said UA updated its sexual harassment and sexual assault policy to more closely align with other schools in the UA System. The policy also may apply to reports of dating violence or stalking, among other types of reports.

The new policy states a mixed-gender, three-person panel will hear appeals, with "specifically designated and trained members of the Northwest Arkansas legal community" eligible to participate.

Rushing said they will not be paid by the university, and a legal expert may not be available to sit on every appeals panel. But the goal is to have at least one person from the legal community seated alongside university faculty or staff in every panel, he said.

Appeal hearings will involve questioning students and possibly witnesses. In cases where students appeal an expulsion or a suspension of 10 days or more, the policy states that advisers to students may "fully" participate.

UA's policy continues to encourage students to report assaults to both campus officials and law enforcement.

The U.S. Department of Education's Office for Civil Rights has told schools they must respond appropriately to student complaints of sexual harassment and sexual violence, with federal authorities citing Title IX, which prohibits sex-based discrimination in schools receiving federal funding.

Campus investigations -- separate from any criminal inquiries -- utilize the more-likely-than-not standard in disciplinary decisions.

UA did not consult students about updating the policy, with changes made "following a review of guidance, legal developments, and best practices," Rushing said.

Cases begun on Nov. 11 or after will follow the new procedures, Rushing said.

Under the old policy, a case went to a hearing panel that made a ruling and decided on any sanctions, with a student then able to appeal.

Now, UA's Title IX coordinator will decide cases and any sanctions after reviewing the findings of a campus Title IX investigator. An "informal resolution process" that may involve mediation is possible, but the policy specifies that mediation is inappropriate for sexual assault, violence or other "severe" misconduct cases.

The university in July announced a new Title IX coordinator, Tyler Farrar, a 2013 graduate of UA's School of Law. He is the sixth person to hold the position since 2014.

The policy states a training requirement for those deciding appeals.

"Only individuals who have participated in in-person Title IX hearing panel training conducted by the University of Arkansas or comparable in-depth panel training will be permitted to serve on Title IX Appeal Hearing Panels," the policy states.

Sanctions will be imposed "only after all appeals have been exhausted," the policy states. The hearing panel decision is final.

UA does not routinely release data on how student complaints are handled, but released to the Arkansas Democrat-Gazette under the state's public disclosure law documents prepared for federal authorities.

An analysis by the Democrat-Gazette found that, from fall 2013 through 2015, about 30 percent of the approximately 47 campus hearings tied to sexual harassment or sexual assault complaints resulted in an appeal. Information was not available for all complaints.

The policy states that investigations "will generally be completed" within 60 calendar days "absent extenuating circumstances." The U.S. Department of Education has said that 60 days is a typical time-frame for investigating cases. Rushing clarified that UA "strives to complete the investigation, adjudication and appeal of cases" within 60 days.

Anne Hedgepeth, senior government relations manager for the American Association of University Women, said schools can take different procedural approaches in resolving complaints "so long as everyone is trained in what they're doing."

Laura Bennett, president of the Association for Student Conduct Administration, in an email said she believes there is a trend on campuses toward a single adjudicator model for deciding cases, though hearing panels still are used.

"In all cases, adequate training on the university's policies, understanding trauma, Title IX, and student conduct administration is critical to ensure a fair campus resolution process," Bennett said.

In addition to procedural changes, the new policy adds detail regarding sexual assault prevention.

UA's student education programs have taught what's known as bystander intervention, including in online training that this fall became a requirement for new students.

The updated policy says "the University also strongly encourages students to intervene if they recognize that sexual assault may be about to occur," but also that bystanders "should choose a course of action that best ensures the safety of those involved, including the student taking the action."

UA's revised policy, as in the older policy, states that consent is "active, not passive" and that silence cannot be interpreted as consent.

The new policy goes on to say that "consent must be ongoing throughout a sexual encounter." It also goes into detail about scenarios where consent cannot be given, such as when a person is "physically or mentally unable to make informed, rational judgments, or lacks the ability to understand the 'who, what, when, where and how' related to the sexual activity."

Rushing said the university wanted to expand on the definition of consent to make it as clear as possible.

"We provided examples of key concepts, including those associated with the consumption of alcohol," Rushing said.

Kristen Jozkowski, an associate professor of public health at UA who has written scholarly articles about sexual consent, said in an email that UA's description of consent is "good and in line" with laws passed by state legislatures in New York and California establishing standards of consent for college campuses.

The policy "will only be meaningful if the university follows through," she added, explaining that "if there is a Title IX case in which a victim never actively agreed to sex (perhaps because she was scared, too intoxicated or for other reasons), the perpetrator should be found responsible." Jozkowski was not involved with writing the UA policy.

Metro on 12/11/2016

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