Campus SaVE Changes, the Sexual Misconduct Board and the New Role of Lawyers in Sexual Misconduct Adjudication
On October 20th, the U.S. Department of Education (DOE) published its finalized regulations on implementing the Violence Against Women Reauthorization Act of 2013, including guidance on the provisions of the Campus Sexual Violence Act (Campus SaVE). While for some, the release of this “final guidance” is not much more than another piece of government bureaucracy, for college campuses around the country it means an entirely new approach to sexual assault prevention and response. Some of the requirements of Campus SaVE are aimed at schools’ education and reporting procedures, such as increased prevention and awareness programs and the inclusion of stalking, dating and domestic violence in campus crime reports. For Reed, this has meant a revisiting of our Discriminatory Harassment and Sexual Misconduct (DHSM) Policy, our education and outreach programs, and some new categories of reportable crime in Community Safety’s Annual Security Reports. Campus SaVE also has the potential to radically reshape certain organizational aspects of Reed’s Sexual Misconduct Board.
The finalized requirements from Campus SaVE extend to disciplinary procedures regarding sexual assault on college campuses, which for Reed means the Sexual Misconduct Board (SMB). Specifically, Campus SaVE requires that colleges allow both complainants and respondents in sexual misconduct cases to have an advisor of their choice present at a hearing. In the past, this has been slightly different for both J-Board and the SMB, since their codes require that any advisor (called “seconds” in the Honor Process) must be a member of the Reed community. Under Campus SaVE, the hearing must open up to allow anyone to be a second. Why is this change important? Lawyers are now legally (as of July 1, 2015) able to be part of SMB hearings.
What does this mean for the college, and specifically the SMB? There are implications for the members of the board, participant experience, and the process as a whole. Currently, the SMB is a board of up to 18 member—12 students and 6 staff members. On any given case, the hearing board consists of five members—at least two students and two staff. Board members are trained to question complainants, respondents, and witnesses in person during hearings, but parties are not able to directly question one another. The hearing process (the exchange of written documents and a hearing) and the hearing itself are two crucial parts to fact-finding and taking in information for a board. In order to participate, a party does not necessarily have to attend the hearing. If parties do choose to attend, the experience of the hearing process is a crucial aspect of the of the case. It is currently structured as an investigatory process focused on discovering the facts of a case as opposed to the adversarial process of argumentation that is common to a court of law. Parties involved in the hearing speak only to the board as they are questioned, and seconds cannot speak at all, except via written communication with the party they are supporting or advising.
Allowing lawyers to be present in SMB hearings could dramatically impact the way the hearing process works. There are six possible points of interruption in the process:
- Increased litigation as a result of lawyers presence in hearings.
- Allegations of improper procedure, particularly in hearings.
- Lawyers contacting and potentially intimidating witnesses.
- Individual board members (students and staff) being sued for conduct during hearings.
- Issues of equity when only one party can afford a lawyer.
- The possibility that survivors will feel less comfortable bringing a case before the SMB if there will be lawyers involved—dubbed the “chilling effect” by President Kroger.
From the College’s perspective, a large part of this concern centers around the presence of student board members in SMB hearings. With lawyers in the room, the hearing will become a grounds for potential procedural error—ranging from improperly worded questions to perceived bias—and having non-professionals participate in this process could open up the college to litigation. There are implications for how complainants and respondents experience the process as well.
Four different models (and many variations) are currently being discussed by Senate, J-Board, select faculty members, and the administration as possible ways to mitigate some or all of these concerns:
- Current-Modified (The “Potted Plant” model)
In a modified version of our current model, SMB membership and hearings would be structured as before, with the only change being that lawyers are permitted into hearings as long as they do not speak. This is currently in line with the manner in which all seconds are expected to behave; however, there are concerns that such a restriction could be challenged by a lawyer as preventing them from properly representing their client. Even if the lawyer could not speak during a hearing, they would still be hypervigilant for any possible suit-worthy mistakes. Additionally, this could change the perception of a fair and unbiased hearing for the participant without a lawyer, and transform the investigative process into an adversarial one. Several colleges currently face lawsuits for their employment of similar models.
- Jury
In this model, SMB members would observe the hearing as a panel and be able to submit questions to a speaking questioner (most likely a retired judge). Since the SMB panel would be removed from the actual verbal questioning, there would be less potential for error or contestation during the hearing. With a jury model, students would no longer directly question parties during the hearing, with the role of questioner being filled by a professional. The SMB would then determine the facts of the case and assign sanctions, as is currently the procedure. This model would retain student involvement on some level, but remove students from the actual process of questioning during the hearing. It would ensure that fact-finding does not occur in a black box: multiple Board members would witness the questioner’s process and be able to affirm or contest what that questioner determined to be fact in deliberations.
- Single-Questioner
Alternately, the school could opt to completely remove the SMB from the hearing itself, filling that investigatory role with a retired judge or other legal professional. This single questioner would conduct the hearing by themselves, and make a finding of facts on the basis of their questioning. The case would then move to the SMB to a finding of violations of the Honor Principle and policy, and recommendation of sanctions. In this model, the concerns of having students involved in the hearing would be mitigated by completely removing them, but student involvement would still occur in the form of their findings of honor violations and their recommended sanctions. There is still the possibility that the single questioner could be sued.
- Conduct Officer
In this model, a single staff member (former lawyer or retired judge) would do both the fact-finding and sanctioning in sexual misconduct cases. While the possibility for a full hearing could still be available under a conduct officer, most other colleges with this type of disciplinary system have opted to do fact-finding using interviews and evidence submission. One strength of this this format is its simplicity and “water-tightness” in the face of lawsuits. Being able to point to an authority figure with a widely recognized title as the decision maker in this process would make things easier for the administration. It would also remove students entirely from the process.
Each model presents its own challenges and strengths, and while the way forward on this is still unclear, one of the most important parts of negotiating these changes will be to understand what the student body wants out of the processes that we currently have in place. There will be a forum on these upcoming changes on Thursday, November 20 at 6pm in the Student Union, and we encourage those with opinions, concerns, or possible solutions to attend.