A View From the Ground

Kate Lawson, Xavier University Title IX Coordinator

Prior to becoming Xavier University’s Title IX Coordinator, I represented victims of sexual violence as they participated in university complaint resolution processes, worked with their universities to address their safety, housing, and academic needs, and pursued Office for Civil Rights (OCR) complaints when university responses were out of compliance with Title IX, and in many cases, with the schools’ own policies. Over six years, I saw firsthand the impact that being involved in a campus sexual violence complaint had on not only my client, but also on the accused student- and not just the parties, but their friends, teammates, roommates, and families. Importantly, I witnessed the detrimental impact it has on all involved when universities do not have effective systems in place to address sexual violence- impact that goes far beyond those involved in a particular case to directly influence the broader campus community’s perceptions of a school’s priorities and agenda around sexual violence. Out of this experience I resolved that my next professional step would be to address this issue from within a university- and not just any university, but one I understood to be committed to creating the very best systems to address sex discrimination- not to “check the box” of legal compliance, but because the university understood that having those systems in place was part of its mission and delivered on its promise to students.

With this background laid, I share the premise in which I ground my work as Xavier University’s Title IX Coordinator. With the appropriate methodology in place, a university can facilitate a complaint resolution process to determine whether a student has violated their conduct policies prohibiting sexual misconduct in a fair, impartial, equitable way that protects the rights of both the complainant and the respondent.

There are three primary components of the methodology that allows this premise to be true. First, the work must be grounded in the understanding, from the highest level of administration to the Title IX Coordinator, that 1) what a school has to stand on is the integrity of its process and 2) that integrity is established and maintained through the consistent, impartial, equitable implementation of written policies that address and protect the rights of all parties involved. If a Title IX Coordinator does the work exclusively through the lens of doing so in a way that protects the school from liability related to one “side” of the case, this increases the likelihood that the school’s process will not be unbiased and impartial.

Second, those who touch the complaint resolution process in any way must receive comprehensive, ongoing training, and that training must address the issue of sexual violence equitably to ensure that bias or partisan thinking does not impact the fairness of the process. For example, training must address the dynamics of sexual violence as it relates to the experience of the reporting student, but it also must address how being accused of sexual violence impacts a student and how that might affect his or her demeanor and behavior.

Third, the university administration and those involved with the complaint resolution process must understand that higher education is a place in which sex discrimination happens and a setting in which it should be addressed- not because we have to under Title IX, but because the university’s mission surely supports the premise that students should not have to experience discrimination on the basis of sex while seeking an education.

Some voices in the national conversation on how campuses handle sexual misconduct are asking, why are universities and colleges in the business of handling sexual assault complaints anyway? Why aren’t we requiring schools to report these complaints to police and leaving the response solely to the criminal justice system?

Higher education is not in the business of prosecuting sexual assault cases. We’re in the business of determining whether a student has violated our community expectations related to sexual misconduct as defined in our internal conduct policies. The same way we do for a wide range of other misconduct that is also criminal in nature and may result in expulsion (e.g. physical assault, illegal drug use, drug distribution, dating violence, stalking)- a practice that has raised no eyebrows or caused a shred of outrage. We would be remiss if we didn’t consider the question, why now? Why on just sexual assault?  If we aren’t acknowledging that sexual assault is viewed and treated differently in our culture than any other crime, and particularly in our criminal justice system, with its unique focus on the alleged victim’s behavior, character, and credibility, we aren’t starting this conversation from an honest or realistic place.

As much as we would like it to be otherwise, the criminal justice system is not currently one in which most victims of rape feel comfortable turning to and for those who do, the system is often perceived as offering very little in the way of accountability. Out of 100 rapes, 32 are reported to police.¹ Of those 32, seven lead to arrest.²  Three are referred to prosecutors.³  Two lead to felony convictions⁴ and two will spend a single day in prison.⁵  Why do 68% of those who experience rape not report to the police?⁶  I would suggest that between “getting the memo” on these conviction statistics and being well aware that they are part of a culture that asks first “What poor decision or bad judgment did the alleged victim engage in to put her or himself in to become a victim of a rape?” rather than focusing on the accused person in the way law enforcement would in say, a robbery allegation, has something to do with it.

There are truly phenomenal, well-trained, experienced police, prosecutors, and judges working on sexual violence across this country who should be lauded for their work. But to suggest that all those conducting investigations and making decisions in the criminal justice system (including juries) are comprehensively trained on the issue of sexual violence and free of any bias is both false and imprudent. The fact is most colleges and universities require a level of training for those making findings in sexual misconduct cases that no jury in the criminal justice system will ever receive. Any college or university with its eye on the ball is providing in-depth training for decision-makers on questioning skills, weighing different types of evidence, elemental policy analysis, standards of proof, applying facts to policy, assessing consent and capacity, and the psychology/sociology of the accused individual and the alleged victim. Many are required to participate in a mock hearing. Shouldn’t we all be asking why, in this national conversation on how higher education addresses sexual violence, so few have turned the same spotlight currently on higher education on the criminal justice system’s response to sexual violence? Where are the task forces, roundtables, best practice policies, guidance documents, and proposed legislation related to that system’s response?

A hypothetical to illuminate the reality of this issue. Imagine your neighbor’s daughter is starting college. You have known her for her whole life- she is a great student, involved in extracurricular and volunteer activities, straight as an arrow behavior-wise. She grew up with your own kids and you consider her a family friend.  She heads to the college of her dreams- the one for she worked her whole life to get in.  A few weeks into college she tells her parents there’s a guy she’s getting to know and likes. Three weeks later she tells them that she went to a party with that guy, had two cups of alcoholic punch, and started kissing the guy. He began pushing her to do more- she tried to say no, but he kept going and raped her. Her parents go with her to report to the police. They investigate and pass the case to the Prosecutor’s Office. The Prosecutor’s Office tells your neighbors they are not taking the case forward because it is a “he said, she said” in which both parties were drinking alcohol and there was consensual sexual activity before the allegation. There will be no criminal case. Your neighbors’ daughter has two classes with the accused student and they live in the same dorm. Your neighbors tell you their daughter can’t sleep and is having trouble concentrating in class. She’s afraid to be in her dorm room and the few friends she made in the first couple of weeks are gradually drifted away as word has gotten out that she accused that student of rape. What would you expect and/or like the school to do?

To ensure a fair, thorough process, I must and do respond to allegations of sexual misconduct by engaging with the reporting party in a trauma-informed, compassionate way. I do that while making no assumptions that the accused individual is responsible for the allegation and while asking targeted, pressing, detailed questions as part of my investigation. I also must and do engage with respondents in sexual misconduct allegations in a trauma-informed, compassionate way. I do that while making no assumptions that individual is responsible for the allegation and while asking targeted, pressing, detailed questions during my investigation.

Some voices in this conversation seem to suggest that it is impossible for any non-law enforcement, university-employed individual to respond to sexual misconduct on campus in a fair, impartial way that protects the rights of all students. I beg to differ and would argue that there are individuals on campuses across the country working extremely hard every day to do just that.

Is responding to sexual misconduct with the methodology described above complex, effortful work? Yes. Does it require vigilance regarding maintaining impartiality? Yes. The fact that the work is challenging and requires a high level of competence does not mean we shouldn’t be doing it.

Higher education is under remarkable scrutiny on these issues right now- from my perspective, that’s a good thing. The higher the scrutiny, the higher our standards, and we should always be striving for the highest standards for all students.

Kate Lawson is the Title IX Coordinator at Xavier University. She formerly served for 6 years as a staff attorney at the Victim Rights Law Center in Boston, Massachusetts. She received her JD from Suffolk University Law School in 2006.

1 United States Justice Department, National Crime Victimization Survey: 2008-2012.

2 FBI, Uniform Crime Reports, Arrest Data: 2006-2010.

3 FBI, Uniform Crime Reports, Offenses Cleared Data: 2006-2010.

4 Department of Justice, Felony Defendants in Large Urban Counties: 2009.

5 Id.

6 Justice Department, National Crime Victimization Survey: 2008-2012