Robert Showers Esq. has had a long and storied career in law. Prior to founding Simms Showers LLP, he was a principal at Gammon & Grange in charge of the litigation department, and before that was with the U.S. Department of Justice where he was acting Deputy Assistant Attorney General, a federal prosecutor and Chief of the Civil Section in the US Attorney’s Office, and was Founder and Executive Director of what is now the Child Exploitation and Obscenity Section (CEOS).

Episode Summary

For many years, sexual harassment complaints were filed away without any action taken. This approach exacerbated the issue. These complaints–whether true or false–need to be taken seriously and investigated.

Now with the emergence of the #MeToo Movement, institutions increasingly are seeing sexual harassment or sexual misconduct complaints filed by students, staff and faculty members. Therefore, institutional leaders need to be proactive in creating policies, procedures and training regarding these types of allegations.

Increasing Number of Sexual Harassment Cases Expected

Charges of sexual misconduct, particularly sexual harassment, are increasingly being taken seriously in the public eye. In the wake of the #MeToo movement with many high-profile offenders being found guilty of sexual harassment and sexual violence, higher education leaders need to be aware that their institutions have an increased risk of being caught up in the publicity of these types of allegations.

College students have a higher risk of experiencing sexual violence than any other crime. Studies indicate that 80 percent of female students who have suffered an attack do not report sexual violence to law enforcement; however, that number will change. More than 50 percent of the college sexual assaults are against freshmen students, which also triggers child abuse laws that require mandatory reporting and increased scrutiny.

These factors may lead to a tsunami of allegations that could swamp both secular and religious institutions of higher education. Therefore, all higher education leaders need to determine if their institution has appropriate policies, training, transparency and preventative measures in place in regards to sexual harassment.

The Effects of the Court of Public Opinion

The citizens who are selected to serve as jurors during trials are influenced by social and mainstream media. Previously, these jurors may have judged someone accused of sexual harassment or an institution that didn’t handle sexual harassment claims appropriately by saying that they were innocent until proven guilty. However, the #MeToo Movement has shifted the paradigm where many citizens are saying that these individuals and institutions are guilty until they prove themselves innocent.

Ramifications of Not Taking Action

Showers has worked on numerous cases in which a student lodged a sexual harassment complaint against a professor, who then gave the student the choice of remaining in the class or failing. The institution could have easily put the student in another class or allowed him/her to take another academic avenue to completing the course during the investigation. Instead, the leaders opted to have the student remain in the class with the alleged abuser.

In several instances where this type of situation occurred, the students were re-victimized because they had to continue to interact with the alleged abuser. This approach led to a public relations nightmare as well as having additional financial damages awarded to the plaintiff following a court case. In the Michigan State case, additional ramifications included a decline in freshman student applications due to safety concerns.

Changes to Title IX

The first of the changes narrows the definition of sexual assault. The old standard was “unwelcome conduct of a sexual nature,” and the new standard is “unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Ed Department justified this by saying it is in line with the Supreme Court guidance, but survivors’ advocates have come out forcefully and said that this new definition will put survivors’ education at risk.

The second major change is the standard by which sexual assault is adjudicated. Previously, the standard was that the assault was “likely to have happened.” However, the new guidance provides for a higher standard, i.e., “preponderance of evidence,” the same standard used in civil suits. This is lower than “beyond a reasonable doubt,” the standard used in criminal trials, but it still creates a higher burden on the victim to prove that the incident happened.

In its guidance, the Ed Dept stated that institutions can use either standard, but this potentially opens the institution up to lawsuits, e.g., institutions may face a lawsuit by the accused if they use the lower standard or the victim if the institution uses the higher standard.

The third major change has to do with holding universities responsible. Under the previous guidance, universities and colleges could be held responsible if they “knew about or reasonably should have known” about an incident. However, under the new guidelines, the institution must have “actual knowledge” of the incident in order to be held responsible; this requires the victim to make a formal complaint through official channels. Telling a professor or resident adviser isn’t sufficient – it must be reported to someone who can do something about it, such as a school official who is involved in enforcement.

Additionally, schools can only be held responsible for incidents that happen on school property or at school-sponsored events, not at private, off-campus residences. Thus, if a fraternity house is located off-campus and an assault takes place there (as was the allegation in the Judge Kavanaugh – Christine Blasey Ford incident), the institution cannot be held liable, even if they have knowledge that these events have taken place in the past.

Lastly, the accused will have the chance to cross-examine the victim under the new guidance, and many feel this will discourage victims from coming forward and reporting incidents.

A Robust Policy on Sexual Harassment

As we all know, the Department of Education released its new Title IX guidance in November, which provides guidance on sexual harassment.  However, some universities and colleges – especially religious institutions – are not subject to these rules. Therefore, it’s important for these leaders to review their institutional policies to identify and close gaps that would make it easier for individuals to bring sexual assault and sexual harassment charges against the college or university.

A sexual harassment policy that will stand up to scrutiny includes:

  • A clear definition of sexual harassment
  • A statement that unambiguously says that this type of conduct is strictly prohibited
  • A clear description of how to lodge a complaint and the process for starting and completing an investigation
  • A prohibition of retaliation for reporting harassment
  • A confidentiality statement about complainants
  • An assurance that complaints are promptly investigated by objective professionals
  • A way to separate the alleged victim from the alleged perpetrator
  • A clear statement that makes clear that if the allegations are substantiated, a disciplinary action will follow and the investigation will be concluded
  • A training process that moves the policy into practice so that all employees and volunteers are on the same page

Training Employees and Volunteers

The training process for recognizing and dealing with sexual harassment and sexual assault should offer awareness so that employees and volunteers understand what is considered to be sexual harassment. This training should include:

  • The definition of what sexual harassment or sexual assault is, which involves unwelcome conduct of a sexual nature. For example, Title IX’s standard is unwelcome sexual conduct or unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies someone equal access to education.
    • This is significantly different than the previous guidance from the Obama administration, which was “unwelcome conduct of a sexual nature.”
  • All allegations should be taken seriously.
  • The individual who brings the allegation needs to be reassured that their voice will be heard and the charges will be investigated without delay or bias.
  • The person who leads the investigation needs to be someone who is objective, thorough and timely.

Investigations

Institutional leaders need to decide how to maintain an objective investigation that’s unbiased. Many cases can be investigated internally. However, internal investigators may know the alleged abuser so the investigation may be tainted, regardless of what is discovered, because the decision will not be taken seriously.

In some cases an external investigation is needed. In these situations, Showers recommends that institutional leaders hire a law firm that is skilled in this area and is able to maintain appropriate protections for both the university and the victim. These types of cases provide tangible but objective results.

Sexual harassment claims are particularly difficult to investigate because oftentimes it’s a “he said, she said” situation without much (if any) corroborating evidence.  These cases often have a lot of direct testimony where one person says that “This happened” and then the other person said, “No, it didn’t happen.” This is one reason why it’s important to retain an objective, unbiased and professional investigator who will keep confidentiality for both the alleged victims and perpetrators, as well as the university.

Most colleges have outside or internal legal counsel. These types of cases need to be run by counsel because their expertise can help guide the decision as to whether an internal or external investigation is needed. This is important because the stakes today are high financially as well as in regards to the institutional image. It’s important that colleges and universities get these investigations right the first time.

Additionally, historical sex abuse allegations, as illustrated by the Brett Kavanaugh case, are very, very complex to investigate. These cases, which happened years or decades ago, are especially difficult because memories fade, witnesses are lost and any tangible evidence is lost. Therefore, these cases provide even more reason to hire someone who understands and has done these cases before and who will be objective.

Changes to Title IX

The first of the changes narrows the definition of sexual assault. The old standard was “unwelcome conduct of a sexual nature,” and the new standard is “unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Ed Department justified this by saying it is in line with the Supreme Court guidance, but survivors’ advocates have come out forcefully and said that this new definition will put survivors’ education at risk.

The second major change is the standard by which sexual assault is adjudicated. Previously, the standard was that the assault was “likely to have happened.” However, the new guidance provides for a higher standard, i.e., “preponderance of evidence,” the same standard that is used in civil suits. This is lower than “beyond a reasonable doubt,” the standard which is used in criminal trials, but it still creates a higher burden on the victim to prove that the incident happened.

In its guidance, the Ed Dept stated that institutions can use either standard, but this potentially opens the institution up to lawsuits, e.g., institutions may face a lawsuit by the accused if they use the lower standard or the victim if the institution uses the higher standard.

The third major change has to do with holding universities responsible. Under the previous guidance, universities and colleges could be held responsible if they “knew about or reasonably should have known” about an incident. However, under the new guidelines, the institution must have “actual knowledge” of the incident in order to be held responsible; this requires the victim to make a formal complaint through official channels. Telling a professor or resident adviser isn’t sufficient – it must be reported to someone who can do something about it, such as a school official who is involved in enforcement.

Additionally, schools can only be held responsible for incidents that happen on school property or at school-sponsored events, not at private, off-campus residences. Thus, if a fraternity house is located off-campus and an assault takes place there (as was the allegation in the Judge Kavanaugh – Christine Blasey Ford incident), the institution cannot be held liable, even if they have knowledge that these events have taken place in the past.

Lastly, the accused will have the chance to cross-examine the victim under the new guidance, and many feel this will discourage victims from coming forward and reporting incidents.

 

Bullet Points

  • The #MeToo Movement, the resulting cultural shift related to sexual harassment and data related to sexual harassment of students suggests that higher education institutions will increasingly be dealing with sexual harassment and sexual abuse issues.
  • Studies indicate that 80 percent of female students never report sexual violence to law enforcement. More than 50 percent of the college sexual assaults are against freshmen students, which triggers sexual harassment as well as child abuse laws that require mandatory reporting and increased scrutiny.
  • Citizens who are selected to serve as jurors during trials are influenced by social and mainstream media. The #MeToo Movement has shifted the paradigm in favor of the victim and institutions are getting caught in the whirlwind.
  • Higher education leaders need to review their institutional policies to identify and close gaps that would allow individuals to bring sexual assault and sexual harassment charges against the college of university.
  • Institutions also need a strong training program to help educate employees and volunteers about the university’s processes related to charges of sexual harassment. This training should include defining sexual harassment and sexual assault, identifying the investigation process and ensuring that the process will be objective and concluded in a timely manner.
  • Investigations need to be objective, thorough and done in a timely manner. Some cases can be investigated by internal team; however, these cases may be tainted by perception since some investigators may know the alleged perpetrator. External investigations offer an outside viewpoint that can be seen as neutral in high-profile cases. It’s important to have a law firm that can offer appropriate protections for the victim and alleged perpetrator as well as the university.
  • Higher education leaders should seek their institution’s internal or external counsel to get feedback on whether to create an internal or external investigation. This is important because of potential settlements as well as public relations fallout on specific cases.

 

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