On Monday, the U.S. Department of Education released a new set of regulations that require colleges and universities receiving federal funds to comply more stringently with the Violence Against Women Act and the Clery Act. This summer, Boston College took steps to update its sexual misconduct policy, a process that happens annually, to contain two major changes that anticipated and exceed the government’s regulations. The first is the addition of definitions for terms such as “consent” and “incapacitation,” which are key to identifying sexual assault but can have subjective or ambiguous meanings. The second is a change in the way the University handles sexual assault cases. BC has moved to an investigative model, in which cases of sexual misconduct will be investigated by an external lawyer with experience in cases related to sexual assault and Title IX, as well as an internal investigator—currently the University student conduct manager.
This change marks a step forward for the University in many respects. Previously, sexual assault cases were handled through a student conduct hearing, which required both the complainant and the respondent to present evidence before a panel of faculty and staff, who then came to a conclusion on the case. The move away from a model in which the complainant and respondent must appear at the same hearing is a smart one—such a process could dissuade a student who has been assaulted from pursuing action through the University. Knowing that one would have to encounter his or her attacker again, and in such an adversarial context, might persuade a student to seek action via a different route, or potentially not at all. By moving to a model that reduces this possibility, BC is working toward creating a campus where every student feels safe reporting sexual misconduct.
In addition, ensuring that two individuals—one within the legal profession, with particular knowledge of sexual assault cases, and one within the University, with particular knowledge of campus culture—conduct every investigation will hopefully guarantee a fair, objective process. The investigation, as in the previous conduct hearing model, will allow both sides to present evidence, though they may now do so without having to confront each other. Each side is also afforded the opportunity to review its statements before the final report—which includes the investigators’ verdict of “responsible” or “not responsible”—is presented to Associate Vice President of Student Affairs Katie O’Dair, who oversees the University’s response to sexual misconduct, and Associate Dean of Students and Director of Conduct Richard DeCapua. O’Dair and DeCapua then either ask for more information or accept the report, in which case DeCapua decides sanctions, if necessary.
This investigative model is the accepted best practice in higher education, and BC decided to adopt it after an exemplary level of research. It is not without its potential pitfalls, however. A process in which the individuals conducting the investigation are also responsible for arriving at a decision deviates from the traditional model of the U.S. justice system, in that the information is not presented to a judge and jury. Furthermore, the relatively closed nature of the investigation could result in mistakes going undetected. The investigators are not lawyers attempting to win cases and bolster their reputations, however, which should insure that they are unbiased and fair in both investigation and adjudication. The system is designed with the intention that the individuals with the deepest knowledge of the case and no bias will make the decision, but without separating those two functions, it will be harder for both the complainant and the respondent to feel certain that is the case. As this new system is put into practice, the University should be aware of that and monitor the process closely.
The respondent is able to appeal the process if new information has been gathered or there has been a procedural error, a somewhat vague term that could potentially keep a wrongfully accused student from appealing the decision. It is important in cases of such high stakes to ensure that the process is not prematurely stacked in favor of one student or the other, as an erroneous verdict could harm either party immensely.
Although there is no perfect way to investigate sexual assault cases and ensure that the truth is always discovered, the investigative model is an improvement over the previous model. It eliminates elements that may dissuade victims from seeking action through the University and creates the possibility for an informed, thorough, and unbiased investigation to occur. For this shift to have the intended benefits, however, the University should inform students of its sexual assault investigation policy to the greatest extent possible. DeCapua has said that his office is partnering with UGBC to review all student conduct policies and to ensure that information is being delivered effectively to students. This is a welcome first step, and both offices should make all efforts to follow through.
Featured Image by Emily Fahey / Heights Editor