A Sound Prevention Base For Addressing Campus Sexual Violence

Note: this blog post was originally published on our career advice column on Inside Higher Ed (here). Brian Van Brunt (@brianvb) is the executive director of the National Behavioral Intervention Team Association. He served as director of counseling at New England College and Western Kentucky University. For more information, see www.brianvanbrunt.com or contact him at brian@ncherm.org. Amy Murphy (@DrAmyLMurphy) is an assistant professor at Angelo State University, where she teaches graduate courses in the student development and leadership in higher education master’s program. She previously served as the dean of students at Texas Tech University (amy.murphy@angelo.edu).

As former university administrators, specifically a dean of students and a director of counseling, we have a distinct perspective on issues of sexual violence impacting college campuses. Speaking frankly, investment in prevention is not as exciting as investing in Title IX coordination and investigation. In our work, we have found the most effective strategy to mitigate risk is not only to fund crisis intervention and post-vention efforts such as investigations and clear due process but also to develop prevention and assessment efforts to better identify early behaviors, attitudes and beliefs that have the potential to escalate into an attack.

Frequently, however, the temptation of people in dean of students and director of counseling roles is to respond to immediate fires rather than to take the time to pull together a compressive, evidence-based approach. That is not an effective way to eliminate sexual violence on college campuses.

Think of the investment a community fire department puts into its work. While purchasing new fire trucks and having the latest in thermal imaging technology may help respond more effectively to fires, a more efficient way to deal with a fire is to prevent it by identifying risky hot spots (Christmas trees, space heaters, fireworks and so on) and educating community members how to prevent a fire before it begins. Similarly, what we need in the Title IX world is a Smokey Bear-style investment in stopping the fire before it starts.

Important Risk Factors

In our 2016 book, Uprooting Sexual Violence: A Guide for Practitioners and Faculty (Routledge), we offer such prevention strategies to reduce incidents of sexual violence and create campus environments that support healthier attitudes, behaviors and relationships. Sexual violence is not just a series of incidents perpetrated by individuals. It is also a broader societal issue that is better addressed by considering systemic attitudes and environments that support the reoccurrence of sexual assault, stalking and intimate partner violence.

We cannot make casual assumptions about where the epidemic of sexual violence might be coming from, but we can look at the roots of the problem that are buried deep within our institutions, organizations and societal values. It is by digging at these root risk factors that we can have the best chance of developing targeted and efficient educational strategies.

The first group of risk factors may be the toughest with which to wrestle, because we see examples of these underlying attitudes and beliefs in our daily lives. They include objectifying and dehumanizing other individuals, misogynistic ideology, lack of empathy, and hardened points of view. Some people see these root contributions to sexual violence as “political correctness” gone amok or even an attack on individual freedoms. But these attitudes and beliefs are regularly connected to the research on violence and tend to feed upon other similar attitudes. In fact, in group environments such as fraternities or athletic teams, these attitudes become implicit approval to think of others as less than oneself.

The second group of risk factors involves behaviors that relate to our treatment of others related to sex: using substances such as drugs or alcohol to obtain sex, behaviors that falsely lure others into feeling safe, ultimatums, and other patterns of escalating threat strategies. These factors may be used at the individual or group level to lessen supportive communication, isolate people and lower their self-esteem and ability to defend themselves.

The last group of risk factors focuses on experiences that escalate our risks related to sexual violence. How do we learn about sex? What are our past experiences with sex? Students with an obsessive or addictive focus on pornography, and who have developed no alternative narratives around how sex occurs, may be influenced negatively by exposure to pornography. Other past experiences as well as sensation-seeking and obsessive behaviors can also contribute to attitudes about sex. Unfortunately, many students have not had access to adequate sex education and are left on their own to understand consent for sexual activity and other issues of healthy sexual relationships. Colleges and universities are often left to fill this information gap for students.

Recommendations

In our favorite episode of the TV show Buffy the Vampire Slayer, “Once More, With Feeling,” the cast comes together to sing the concluding song “Where Do We Go From Here?” (See a snippet on YouTube here.) That is a fair question.

Here is what we suggest:

  • Monitor social event planning. A higher education institution should devote equal time and energy to appropriate planning and implementation processes for events that include alcohol. Administrators need to actively monitor the social environment and address the opportunities for perpetrators to take advantage of others. They should ask themselves questions like “How is the event being promoted and what messages are being sent?” “How is the safety of the attendees considered?” “What lessons have we learned from past events to ensure everyone has a safe and fun time?”
  • Teach otherness and empathy. The teaching of empathy is best tied to the overall mission of the college. For many liberal arts institutions, this mission involves teaching students to think critically and diversely about the world around them. To that end, faculty and staff members could reasonably teach basic empathy and perspective-taking skills to students in their classes, workshops and orientation events. This directly impacts the root risk factors of objectification, misogyny and hardened points of view.
  • Challenge hardened viewpoints. Critical thinking is the hallmark of liberal education. It cannot be just about content knowledge, but must also be about teaching students how to think. Following that logic, there is little room for inflexible thoughts or entrenched points of view. We need to challenge students’ thoughts that center on women being worth less than men, that other people are objects to be enjoyed regardless of their agency, or that you just have to ask more aggressively when someone says no to sexual activity.
  • Teach consent. Simply identifying the “bad” and developing programs to reduce at-risk and concerning behaviors is not sufficient to stem the tide of sexual violence on our campuses. We also must teach sexual consent and relationship health in a continuing, affirmative — and, quite frankly — engaging and entertaining format. Specifically, we recommend:
  1. creating dialogue, not monologue, when teaching students;
  2. knowing your policy and conduct code;
  3. using technology to help engage students;
  4. teaching students that good sex begins with good communication; and
  5. embracing the prevention year, not the prevention month (such as Sexual Assault Awareness Month during the month of April).
  • Teach healthy relationships. Healthy relationships, in all their wonderful diversity, are based on concepts of open communication and respect for each other’s autonomy and connectedness. In healthy relationships, people cultivate each other’s worth, as well as demonstrate willingness to reach a middle ground and to contribute to the betterment of the other. Colleges can support healthy relationships by helping students build their skills around practicing active listening, empathy and equanimity; focusing on the other’s happiness; and fostering social connection and mutual respect.

While institutions must investigate and respond to incidents in an efficient and consistent way, and often put out fires, we would do well to focus more time and energy on prevention and education. We need to find the time and resources to prevent those fires before they begin.

So what next? Again, we turn to the end of the TV series Angel, the companion series to Buffy the Vampire Slayer, to offer some guidance.

Spike: “And in terms of a plan?”
Angel: “We fight.”
Spike: “Bit more specific?”
Angel: “Well, personally, I kinda wanna slay the dragon.”

Does Title IX Silence Sexual Assault Survivors?

Note: this blog post was originally published on our career advice column on Inside Higher Ed (here). Cybill Rights (a pseudonym) works with victims of sexual and intimate partner violence domestically and abroad. She also teaches about victimology to students and justice professionals.

As a criminologist who studies sexual violence in colleges, I was surprised by the way that universities implemented changes in response to Title IX legislation over the past few years. Title IX is part of a U.S. civil rights law, created in the early 1970s to address discrimination on the basis of sex in public education. Title IX also deals with sexual harassment and other forms of sexual violence, as those actions impede a person’s (usually girls’ and women’s) opportunity to receive a quality education. Public universities must be in compliance with Title IX in order to receive public funding.

In 2011, the U.S. Department of Education issued a Dear Colleague letter in response to Title IX complaints. The letter seemed promising, as it began with research on how often sexual assault is perpetuated in college (which is often), and then provided very detailed suggestions on how to confront sexual harassment and assault. I agree with some of the letter’s suggestions and disagree with others. My main issue with the changes is that universities interpret and/or implement them in ways that go against the knowledge and research on sexual violence.

Scholarly literature continuously asserts that sexual assault is a crime of power. Sexual assault takes away a victim’s power and agency. To assist with healing, we need to affirm survivors’ agency and re-empower them. And we do so by creating an environment wherein the person who experiences sexual assault feels safe and is able to make their own choices.

What does re-empowering a person who was sexually assaulted look like? In advocacy-based programs, re-empowerment entails an advocate listening to victims and speaking on their behalf, but not making decisions for them. It is about providing the person with options and letting them chose their own path to healing. They need to make both big and small choices, and often it is best to start small, such as preference for a meal.

Then, of course, there are the bigger choices regarding the incident, such as whom they choose to tell. They may or may not choose to tell the authorities (e.g., law enforcement). They may choose to report it to the university officials as opposed to the campus or local police. Here is where it gets tricky within the recent Title IX changes, namely the issue of mandatory reporting.

Mandatory Reporting

Mandatory reporting requires many university employees (including professors, staff members and resident advisers) to report if a student tells them about an incident of sexual assault. Institutions define slightly differently which incidents must be reported, but one thing seems consistent: the employee must provide the name of the student who disclosed being raped or sexual assaulted to the Title IX coordinator or someone of equal position.

This means that the choice as to whom the student tells their story is taken away from them. Their agency in that regard is essentially removed.

In addition to removing the students’ agency (read: disempowering them), mandatory reporting yields another set of concerns. The sexual assault victim often makes their initial disclosure to someone whom they trust. On college campuses, that can range from a friend to a professor. It is less common for it to be an authority figure, such as an officer or an administrator.

Research suggests that the first person a victim of sexual assault tells is extremely important. If that person believes them and is supportive, it facilitates the victim’s healing. A positive, empathetic response from the listener is paramount.

But mandatory reporting is not training employees to respond empathetically or even to engage in active listening. It is a requirement for employees to report someone else’s personal information, a potentially painful, traumatizing and embarrassing incident.

Here, the criticism of this policy can then be extended to a broader criticism of the university in that it tends to be liability focused rather than student focused. Mandatory reporting supports the notion that the employee is liable if they choose not to or fail to report. Depending on institution and the position of the employee, they may have little protection from censure. Of course, it could be argued that it is meant to protect students, but that is a paternalistic perspective that is not necessarily supported by extant research.

Suggestions for Re-Empowering Victims

What is the best course of action to make Title IX policies genuinely student focused, then? I offer the following suggestions for policy makers and universities based on my research on sexual violence.

  • Allow anonymous reporting. University employees should still be expected to report any disclosed sexual violence, but they should not be required to mention names if the victims prefer to remain anonymous. That protects students’ agency. It is their choice to whom they tell their story, but the university could still gauge the prevalence of sexual assaults on the campus on an aggregate level.
  • Train all professors, staff members and other employees (including Title IX coordinators) how to respond appropriately. That includes how to listen actively to sexual violence stories and to reject victim blaming and rape myths. They do not need to become victim advocates, per se, but their institutions should train them to respond empathetically. Universities should also provide them with a list of resources to give to the student who has been sexually assaulted. This information would include the Title IX coordinator and information about that office, but it would be a victim’s choice if they want to go the formal route.
  • Inform and support a student who formally reports a sexual assault about the process. Universities should administer anonymous or at least confidential surveys to the people who report. They could ask them how they felt they were treated during the process or if they felt justice was done. They can ask if they felt listened to and believed. They could ask them about what programs and policies they would like to see on the campus. From a procedural-justice perspective, victims feel better about the outcome when they are informed and involved in the process.
  • Focus on creating a campus culture that encourages students to come forward when sexually assaulted. Universities should create more safe spaces where students can express themselves freely and without judgment or recourse.

These are but a few of the ideas that are research supported. There are more — regarding the legal processes that are currently in place at universities — but that is for another post. To conclude, it is my hope that we can create an inclusive campus culture for all genders, which is what Title IX originally intended.

Title IX And Your University’s Legal Counsel

Note: this blog post was originally published on our career advice column on Inside Higher Ed (here). Sara Matthiesen is a postdoctoral fellow in American studies at Brown University. She has worked to secure Title IX and labor rights for graduate and medical students since 2012. She will be an assistant professor of history and women’s, gender and sexuality studies at George Washington University beginning fall 2017.

As activists and legal advocates warned, the Trump administration has already done significant damage to civil rights designed to protect students. The news that the U.S. Department of Education is cutting back its investigations of claims is only the most recent example of just how little students and their advocates can rely on federal oversight. The withdrawal of Obama-era guidance on accommodations for transgender students and claims that gender discrimination in education is a matter of states’ rights have redrawn battle lines forged under the previous administration. While campus activists propelled that sympathetic administration to action through an unprecedented number of Title IX complaints submitted to the Office for Civil Rights, the blatant hostility of Donald Trump, Betsy DeVos and Jeff Sessions is forcing activism back to the local level.

While efforts to oppose the administration’s attacks on Title IX and other enforcements against sex discrimination are vital, I am also welcoming a renewed focus on local accountability. Now that many more colleges and universities have dedicated Title IX offices and staff, it is time for activists to take a hard look at what it takes to make this work successful. For activists working with (and against) relatively well-resourced institutions, I suggest putting the spotlight on an overlooked but exceedingly powerful entity: your university’s legal counsel.

Unlike the highly visible offices of presidents, provosts and even Title IX coordinators who are routinely the target of student demands for accountability, university lawyers are often spared this external pressure, and only the most seasoned student activists even know such an office exists. This invisibility is structural and deliberate; unlike administrators, lawyers do not hold office hours, and many legal offices have an unofficial policy of not meeting with students. Those of us pushing colleges and universities to act in accordance with their values must start fighting this invisibility or we will continue to misgauge where the actual levers of power reside.

So, let’s take a moment to power map. Institutions that can support in-house legal guidance receive counsel on virtually all decision making — think faculty governance, real estate acquisition, financial aid and student conduct, for starters. A legal office evaluates everything from demands for sanctuary to unionization efforts to Title IX-related policies, with the aim of mitigating the college or university’s exposure to risk, be it legal or financial (and these often go together). The senior counsel is likely one of the institution’s highest-paid employees, and this position usually has a direct line to the president. This powerful office serves the institution; its obligation is to the university itself.

Therefore, the legal office has a fundamentally different aim than a Title IX office, which serves students, administrators and faculty members affiliated with the institution. A Title IX office is charged with making sure that incidents of gender discrimination are addressed promptly and equitably. This means, in part, facilitating a complaint process that balances the rights of all parties while resolving alleged policy violations related to Title IX. Ideally, this process is within a college or university’s Title IX office.

Given that, it is not difficult to imagine how a Title IX office might find itself at odds with the university’s legal representatives. To be sure, legal counsel is responsible for ensuring that the institution is in compliance with all manner of federal and state regulations, including Title IX, and so, in that respect, the offices’ aims align. When it comes to the specifics of individual cases, however, there will undoubtedly be competing risks with which legal counsel must contend.

Perhaps most obvious is the student or faculty member who retains a lawyer and threatens legal action. This instantly becomes the competing, more immediately pressing, risk of litigation. Litigation is costly; well-resourced colleges and universities hire external litigators when they go (or are taken) to court, which means institutions are paying an additional fee on top of their in-house expertise. This “threat” does not incentivize a Title IX office to re-evaluate its aims in the same way; its responsibility remains equity, especially in the face of litigation. When confronted with such power imbalances, the Title IX office is required to work toward restoring parity. Legal counsel, in contrast, works to inoculate the institution from financial and legal harm. Equity — especially when it is clear one party will not or cannot attempt to rectify the imbalance of their own accord — becomes a secondary concern.

Beyond the specifics of individual cases, climate and legal trends also influence a legal office’s risk assessment. By now, the backlash to colleges and universities taking Title IX seriously is in full swing, as groups like Save Our Sons and the Foundation for Individual Rights in Education help popularize the argument that Obama-era guidance on addressing sexual assault often inherently violates students’ due process. Accused students with sufficient financial resources are increasingly lawyering up upon receiving a complaint, and lawyers are capitalizing on the narrative that Title IX protections imperil procedural fairness.

This climate only reinforces a Title IX office’s original aim to make sure that gender discrimination is resolved promptly and equitably, of which due process is a fundamental component. But for a legal office, this climate tips the scales towards one risk — legal action from an accused student or faculty member — and away from another — failing to uphold what is required under Title IX in every individual case.

Of course, all institutions must do the hard work of resolving competing aims. But when it comes to putting Title IX to work at the local level, numerous resignations of Title IX coordinators suggest which offices’ aims prevail when push comes to shove. While the documentary The Hunting Ground popularized a narrative about colleges and universities callously putting their brands and sports teams before their students, a far more mundane and inherently structural problem also necessarily curtails a robust implementation of Title IX. University legal offices and lawyers are not by definition malicious, but there will inevitably be cases that incentivize legal counsel to advise universities according to how best to avoid the immediate risk of litigation.

That can happen even when the law is on a university’s side, and even if it means sacrificing equity in a particular instance. And, because victims and survivors of sexual assault have largely turned to OCR for justice while respondents (the accused) have largely turned to the courts, avoiding litigation can mean bending a process for respondents and sacrificing equity for complainants simply because respondents are more likely to threaten suit. These are the instances in which a legal office — by virtue of its role within the university — necessarily imperils a Title IX office’s ability to ensure equity.

Thankfully, this problem is not insurmountable. Campus activists can take stock of their university’s legal representation to see whether campus lawyers have expertise in Title IX. This is a reasonable ask given that lawyers continue to play a role in Title IX implementation. They can work to make the relationship between legal counsel and the Title IX office transparent, to ensure that offices share a commitment to equity. Perhaps most important, they can call on presidents to weigh legal guidance and decide that weathering risk is worth institutional principles.

Campus activists have long made use of a vital tactic: holding the university to its stated values. For Title IX, this will mean ensuring that institutions commit to putting equity above risk even and especially in the face of legal action.

Nondisclosure Agreements Silence Survivors Of Sexual Violence

Note: this blog post was originally published on our Inside Higher Ed career advice column (here). Sheila Liming is an assistant professor of English at the University of North Dakota, where she teaches classes on American literature, theory and media history. Her public writing has appeared in venues like The Atlantic, The Chronicle of Higher Education, and the Los Angeles Review of Books.

The Silencing of Sexual Violence Survivors

Back when I was a freshman in college many years ago, something happened. This something involved someone who was a member of my college’s faculty and me, and it resulted in my filing a complaint relating to allegations of sexual assault. But now, 15 years later, I am compelled to rely on those kinds of ambiguous nouns — something and someone — in lieu of specifics. At the behest of college administrators and representatives, I signed a nondisclosure agreement that prevents me from sharing anything more specific about that something and that someone.

At the time, I understood my silence to be a necessary cost levied in exchange for protection and support. I brought my complaint to a trusted faculty member who, in turn, forwarded it to the appropriate administrator. That administrator then told me that I had two options. I could take my complaint to the police, thereby exposing myself to a public trial, newspaper reporters’ inquiries and the scrutiny of our entire college-town community. Or I could let the college handle the investigation, as long as I was willing to aid that investigation by keeping contractually quiet.

I was 18 years old, living more than 1,000 miles from home. Save for that one trusted faculty member, I had not told anyone about the something, not even my roommate or my parents. So I agreed to a private, internal investigation and signed the nondisclosure agreement — before speaking to a lawyer, before receiving any impartial advice and before having the opportunity to tell my story to anyone who might have been in a position to offer me support.

What Are NDAs?

Nondisclosure agreements — or NDAs — are legal agreements that are employed with the aim of protecting sensitive information. In business, “sensitive information” may amount to trade secrets or specific details about a product. In higher education, colleges and universities have historically turned to NDAs when investigating allegations of sexual violence or misconduct.

NDAs typically mandate that both parties involved in the complaint remain silent so as to avoid impeding a college’s investigation (which sometimes includes the gathering of witness testimony). And in order to further discourage those involved from speaking, NDAs often specify that financial penalties and personal liability are likely to result if either party breaks the agreement. (See, for example, The Washington Post’s coverage of the subject in the context of former presidential candidate Herman Cain.)

But in recent years, critics of the practice have pointed out that such confidentiality agreements stifle student speech and prevent victims — be they the accusers or the accused — from speaking out and sharing their sides of the story. What’s more, as a 2014 Inside Higher Ed article explains, NDAs place comprehensive bans on speech that extend beyond investigative proceedings and remain in effect long after the details of a case have gone public.

That means that victims of sexual violence are unable to shape the narrative that gets told and retold about them — instead, they are held hostage by the whims of gossip and hearsay. This situation has prompted some people to ask whether there might be such a thing as too much confidentiality, since, as one expert explains in the Inside Higher Ed article, “Colleges and universities rarely if ever intervene to correct the public record — even if they were to obtain the consent of both parties.”

Citing those same concerns, in addition to mounting public pressure, some colleges and universities have recently moved to discontinue the practice of requiring NDAs for those people wishing to file complaints of sexual violence or misconduct. American University, for instance, announced last year that it would no longer require students to sign them when filing complaints of misconduct against other students.

But as a more recent series of articles in The Guardian points out, NDAs are particularly common — and thus particularly pernicious — where student complaints against faculty or staff members are concerned. In such cases, NDAs “allow alleged perpetrators to move to other institutions where they could offend again,” thus “masking” the very prevalence of issues of harassment, violence or misconduct — all in the name of confidentiality.

What to Know and What to Do

What all higher education professionals must understand, then, is that such practices governing confidentiality are still very much the norm today. Most institutions still rely on them, which is why it is important that faculty and staff members read and acquaint themselves with institutional policies regarding confidentiality and voluntary disclosure. But, even more important, they need to take an active role in communicating their understandings of those policies to students.

I am not saying that folks in higher education need to memorize their campus’s policies and approach all interactions armed with chapter and verse. Rather, now a faculty member myself, I am arguing in favor of a heightened awareness that may permit university professionals to engage candidly and responsibly with student victims. If a student approaches you with the expectation of confidentiality, you need to inform that person of your ability to listen and, perhaps, act in confidence.

For example, if you hail from one of the many professional disciplines that make you subject to mandatory reporting laws (like law, medicine or social work), or if you serve in the capacity of a campus security authority — which, under Title IX, may also require you to report — you need to be honest in explaining that you may be unable to comply with a student’s wishes regarding confidentiality. A colleague at my institution’s law school recently told me that she was thinking of putting a sign on her door to declare her status as a mandatory reporter so that students would be able to consider their options before approaching her. Similarly, if you know that official student complaints on your campus are likely to be met with secrecy in the form of compulsory nondisclosure agreements, you must be up front and explain as much to a student beforehand.

Here’s why a willingness to be both honest and informed matters: what followed my decision to sign that NDA some 15 years ago were, frankly, the worst four months of my life. I was removed from the course that I was taking with the faculty member in question and instead enrolled in an independent study course, conducted by another faculty adviser who had no experience in the topic and little direct interest in overseeing my studies anyway.

Meanwhile, my absence in the class had not gone unnoticed, and rumors proliferated — rumors that I was contractually bound to accept with good grace since I was not allowed to talk about what had happened. The administrator who had dealt with my case had warned me that my violating the NDA “could compromise the investigation or could violate someone’s privacy and expose me and the college to liability.” Those were not my college administrator’s exact words, but they are the words of confidentiality agreements used by higher education institutions today.

There are alternatives, though. American University, for instance, now favors a confidentiality agreement that includes a First Amendment rights statement. The statement is designed to assure victims that confidentiality is the responsibility of their university but not necessarily required by them.

Preventing sexual violence and misconduct on college campuses requires a sincere commitment to acknowledging that sexual violence and misconduct do indeed happen — that they have been happening for some time now, that they are happening right now. Nondisclosure and confidentiality agreements have historically helped to keep us, as university professionals, from acknowledging that. Yet in order to imagine better, fairer alternatives to NDAs, we must start by facing the facts concerning their ubiquity and prevalence on our own campuses.