TITLE IX CONFLICTS & ROLES: MHA NASPA Law Conference 2011

Title IX – ��Defining Roles &

Confronting Conflict Dr. Gary J. Margolis

2 © Margolis Healy & Associates, LLC

Agenda

•  Introductions

•  A conversation…

•  5 Challenges I.  Touch points

II.  Coordination

III.  Access to support services

IV.  Lack of awareness on gender/sexual violence

V.  Investigations


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Context

•  We navigate unique challenges due to climate, environment and culture

•  Collaboration, Communication, Coordination and Capitalization are pathways to success…


Challenge #1: Touch Points

“Touch points” are both positive and potentially negative



•  Campus public safety (sworn and non-sworn)

•  Student Affairs (Dean, Residence Life, RAs)

•  Health Services

•  Counseling Center

•  Women’s Center

•  Advocates

•  Off-campus resources

•  Title IX Coordinator



Challenges

-  Poor collaboration may lead to cross purposes and poor support for survivors

-  Different institutional policies regarding reporting complicates the process



Successes

-  Strong collaboration (before incidents are reported) ensures survivor’s interest remain top priority

-  Advocates embedded in PD; appropriate protocols


Challenge #2: Coordination

Coordination with local authorities is often a source of tension



•  Campus public safety

•  State, local, county law enforcement

•  Student Affairs

•  Prosecution

•  Advocates

•  Administration / General Counsel



•  What are community expectations? There are actually several communities…

•  Do local police handle all cases? Are there appropriate protocols in place?

•  Is there a county-wide task force?

•  Does UPD handle, and if so, what about the administrative inquiry/investigation?



Challenges

•  Law enforcement perspective:

-  Are UPD officers trained to appropriate level

-  Are they representing survivor, institution, or “the people?”

•  Adjudication perspective:

-  Deans want to move swiftly (Title IX)

-  Prosecutors want to build best possible case



Challenges

•  Police investigations are not determinative of whether the incident violates Title IX

•  Police investigations do not relieve institutions of Title IX duty to resolve sexual violence complaints promptly and equitably

•  Institutions cannot wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting.



Successes

•  Pre-coordination between Title IX Coordinator, Student Affairs (Conduct Office), Campus Public Safety, Law Enforcement

•  Coordinate when the incident is reported, and when practical

•  MOU’s and standing meetings



Successes (cont)

•  Develop respectful working relationship (and good contacts) with local law enforcement. Both law enforcement and institution have role to play…

•  Keep in touch with law enforcement to determine the status of their work and to let them know the status of yours…

•  Ensure that law enforcement understands that institution has prerogative and obligation to protect campus community while law enforcement fact-gathering is in progress…



Successes (cont)

•  If criminal charges are pending and you are a public institution, respondent has a due process right to have an attorney present at the hearing

-  Attorney serves as respondent’s advisor, not active participant (unless your hearing procedure allows for that)

-  Title IX demands parity for complainant and respondent, so complainant would be entitled to have an attorney present as well

•  Dealing with requests to hold the institution’s case in abeyance



•  “Double jeopardy” argument – don’t fall for it…

•  Did the prosecutor decline to prosecute? Keep moving forward…

-  Note: If the criminal case is over, consider allowing respondent (and complainant) an attorney if an appeal is pending


Challenge #3: Access

Access to on & off campus support services



•  Not all campuses have victim support services. Survivors rely on community resources…

•  Local providers may not understand campus processes or culture. Could lead to poor advice or worst, further danger for the survivor…

•  Reverse also possible



Successes

•  On and off campus advocates work closely together

- Some jurisdictions, advocates serve both community and campus (capitalization)

•  Close coordination and communication

- Local support services understand campus culture and processes

- Regular meetings to exercise a coordinated response


Challenge #4: Awareness

Lack of understanding/knowledge about gender/sex crimes



•  Interconnected nature of gender and sexual violence crimes

- Stalking, sexual assault, intimate partner violence;

•  Failure to acknowledge the prevalence of relationship violence;



Successes

•  Fully informed campus constituents (e.g., public safety, student affairs, legal, counseling center, health center, etc).

•  VAWA Grants require joint training

•  Presence of viable crime prevention and security awareness programs

- Men Against Rape programs

- Bystander Intervention (UNH)


Challenge #5: Investigations

•  Hire knowledgeable and experienced investigators, or develop from existing staff

•  Ensure investigators understand their role as a neutral party, not advocates

•  Ensure investigators have regular contact with the Title IX Coordinator…



Impartial investigator -  No bias or conflict of interest

-  Consider giving the parties an opportunity to object to the investigator

-  Use a different investigator if you feel there is a possible or actual conflict

-  Per OCR, should not be Title IX Coordinator or college/university attorney, which could present a conflict of interest

-  Per OCR, should have adequate training or knowledge regarding sexual violence

-  Per OCR, do not rely on police or insurance investigations. The institution needs to conduct its own review



6 “Musts” for Effective Investigations


Effective Investigations

•  There is no “normal” victim response

•  Most victims do not physically resist

•  Most victims who report do so after some delay

•  Most victims have difficulty remembering all the details or sequence of the sexual assault

•  Victims experience trauma reactions on an ongoing basis after the assault

•  We can use expert witnesses (through training) to explain impact of trauma

I. Recognize impact of trauma



•  Victim’s first impression matters… •  Build rapport/trust with the victim, reassure… •  Work with and maintain relationships with

advocates •  The recipe for a bad investigation is to form a hypothesis

and try to prove it (my “gut” tells me…) •  The strategy for a good investigation is to examine all

the evidence and let it take you to the truth •  Always approach a case believing that “something”

occurred, victims are sensitive to this

II. Understand Victim’s Reluctance to Report



•  Physical evidence: exam, photos, digital forensics/social media/hidden recordings, etc

•  Witness accounts from before and after assault •  Outcry witnesses (person who first hears an

allegation) •  Stalking or abuse behavior •  Documentation of sensory and peripheral

details from the victim’s perspective - What did “no” look like? What did fear feel like?

•  Follow up to see the effects of ongoing trauma in victim’s life

III. Corroboration of details is essential



•  Investigate offender’s pre and post assault behavior

•  “He said, she said” becomes “He said, they said”

•  Why did respondent choose/target the victim?

•  How did they manipulate the environment and circumstances to get the victim into a position of vulnerability?

‣  Role of alcohol or drugs

‣  Chosen location for the assault

‣  Grooming behavior

‣  Contrived circumstances

IV. Focus on offender behavior - not victim behavior



•  Investigate the offender’s history/background

•  Investigate his social circles for “similars” (other victims, interrelated crimes)

•  Social media, pre and post assault messages & calls

•  Use of “pre-text” phone calls/text message (warrant )

•  Forensic exam of suspect

•  Develop suspect interview strategy (tie in offender behavior, background, sexual violence awareness prevention… consider apology letter)

V. Investigate the offender



•  Goal of investigation is to be objective and thorough

•  While every case is different, investigations must be consistent and thorough (Policy)

•  Detailed case documentation/report writing

•  Supervisory review of all cases

•  Multi-disciplinary case audits, after action review

•  Seek expert guidance/testimony when uncertain

•  Pursue Justice & Fairness…

VI. Thorough Documentation


Behind the Scenes

•  Ensure interim measures are effective

•  Keep relevant administrators (as determined by the investigator) apprised of investigation progress

•  Consult with Title IX Coordinator and Legal Counsel

•  Consult with media relations, as appropriate


QUESTIONS?


Opportunities for Success

• Collaboration

• Communication

• Coordination

• Capitalization


What to consider…

1.  Are my actions and decisions in the best interest of the complainant?

2.  Do my actions and decisions respect the rights of the respondent?

3.  Are my actions and decisions in the best interest of the university?

4.  Am I reasonably complying with federal guidelines as they are understood?


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Education

TITLE IX CONFLICTS & ROLES: MHA NASPA Law Conference 2011