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Utah public colleges changing how they dispense discipline for sexual assault

Published July 18, 2016 11:44 am

Justice • Critics question whether administrative panels should rule on criminal offenses.
This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Cedar City • At colleges and universities throughout Utah, school panels originally intended to address cheating or plagiarism act as judge and jury for students accused of sex offenses.

The closed-door, federally recommended proceedings are designed, administrators say, to make students feel safe and to educate, not brand anyone as a criminal. But critics say schools need more oversight in handling violent crimes — and question whether they should at all.

In response to this national and local debate, the Utah System of Higher Education is standardizing the process for responding to rape and sexual assault at the state's public colleges.



On Friday, Utah's Board of Regents approved a new policy outlining minimum standards for the student disciplinary process — guaranteeing students the right to an attorney or adviser who may make opening statements at formal hearings, and stipulating that colleges and universities can levy sanctions even if an accused student refuses to participate in the disciplinary proceeding.

Geoff Landward, an assistant commissioner for the Utah System of Higher Education, said the policy ensures fairness for everybody involved in campus discipline.

"We don't want to create any kind of chilling effect for people to report misconduct," Landward said. "We want to make sure [students] feel safe engaging in these hearings, while at the same time recognizing that we need to guarantee that anyone who has been accused of something should have a fair process to defend themselves."

In addition to the new policy, Landward said, Utah higher education leaders are in the process of forming a task force to study how individual campuses respond to allegations of rape, sexual assault and harassment of students.

But he added that those actions may not end discussion — and potential controversies — over campus discipline and the competing priorities of student safety and due process rights.

"We hope that this works," he said. "If we see that it is not, we're going to have to come back and have this conversation further."

Representation and protection • If a student at a Utah college accuses another of sexual assault and requests a formal investigation, school officials interview witnesses and the accused student and determine whether campus policy was violated.

If the accuser or the accused is dissatisfied with the conclusion administrators reach, he or she may ask that the case be reconsidered. Appeals generally trigger the formation of a disciplinary panel made up of volunteer faculty, staff and, sometimes, students.

Click here to see the investigation processes at 10 Utah colleges.

At Utah State University, investigators send their findings to Krysten Deschamps, director of student conduct, to take disciplinary action. Her decision can be appealed to a panel of four faculty members and two professional staff members.

Appeals have become more common over the past two years, Deschamps said, as campus sexual assault gets more attention.

"Now a student appeals almost every time," she said, because there's "better awareness of students' rights."

Students accused of sexual assault in other states have successfully sued their universities for denying them due process in these proceedings.

In April, a California appeals court ruled against the University of Southern California, faulting the school for not allowing a male student accused of sexual assault to review the evidence against him.

The Utah Board of Regents' new policy stipulates that evidence be shared with both parties, and that students have the right to be represented during formal hearings by advisers, including attorneys. Advisers may provide opening and closing statements on behalf of their clients and interrogate witnesses by submitting questions through the person chairing the committee.

Most Utah colleges already allow students to bring advisers to these hearings, but place varying restrictions on how much the counsel can do and say. At Salt Lake City's private Westminster College — which would not be affected by the new policy — advisers can conference only with their student client and may not speak during formal proceedings.

The new policy mirrors the format at the University of Utah, where anesthesiologist Mark Harris has served on three disciplinary panels, including once as chairman for a sexual assault hearing.

The two parties in that case were not allowed to directly address or cross-examine each other, Harris said. Instead, the students or their representatives would direct a question to the panel, and he had the discretion to either dismiss the question or repeat it back for a response.

It's a procedural hurdle that can seem silly at times, he said, as everyone involved in the hearing sits within earshot of one another.

But it's important when the health and safety of a student has been threatened.

"I am between the accuser and accused — the committee is standing in the way," Harris said. "Hopefully it engenders a feeling of at least some degree of protection."

Nisha Kavalam, a U. graduate, reported being raped by a classmate last year and appealed after the Office of Equal Opportunity found that there wasn't enough evidence to substantiate her claim.

She said she was happy that questions were asked through the committee chairperson because "they can shut down anything."

"My perpetrator's lawyer asked what my sexual history was, and the chairman said, 'That's inappropriate, don't answer that,' " she said.

Equal rights • Utah lawmakers this year considered but did not pass a proposal from Rep. Kim Coleman, R-West Jordan, that would have allowed for full legal representation in university proceedings, similar to in a court hearing.

The regents' policy found consensus among campus representatives that Coleman's bill had not.

"Ultimately, they are much happier with this than what the legislation that almost passed was," he said.

But many say academic institutions cannot adequately address sex crimes alongside cheating and underage drinking, even if attorneys are involved.

Rape "should not be something that should be even considered by these" boards, Sen. Howard Stephenson, R-Draper, said during an interim committee meeting earlier this year.

Utah defense attorney Jeremy Delicino has never argued in front of a university panel in this state, but he successfully fought off an accusation of sexual assault against a student client at a Southern California University in May.

He characterized the experience as an attorney's nightmare.

Delicino said he lacked access to evidence and the ability to cross-examine, the tools he typically relies on to build a strong defense.

"I have a lot of misgivings about the way the process plays out around the country," said Delicino.

According to Joe Cohn, legislative counsel for the Foundation for Individual Rights in Education (FIRE), "it's a bad idea for schools to be doing the investigations and fact-finding for these cases."

But because schools are federally mandated to investigate, FIRE — a Philadelphia-based nonprofit that advocates for civil rights in academia — is pushing for changes to the way they go about it.

"The key is making sure that there's some procedural rights," Cohn said, "so the proceedings are more reliable than they are currently."

FIRE is focusing on putting active legal counsel in these hearings nationwide, and it worked with Coleman on her bill. Nearly identical proposals have become law in North Carolina and North Dakota.

A muzzled lawyer, Cohn said, is like having a "potted plant sitting next to you."

And there are more problems with the process, he said: Panels rely on a "preponderance of evidence" to determine guilt rather than the more stringent "beyond a reasonable doubt" standard used in criminal cases. Witnesses aren't under oath to tell the truth. And the panels of students and staff lack subpoena power to compel participation.

But others say the school process shouldn't be compared with the criminal justice world, where the focus is solely on whether a person is guilty and should be punished.

For schools, sexual assault is a matter of civil rights — equal access to education.

Schools are mandated by a federal law called Title IX to not just discipline offenders, but also protect alleged victims — adjusting their academic or living situations, for example, or prohibiting the alleged perpetrator from having contact with them.

"The right to be free from sexual harassment, and not to be sexually assaulted while you're on campus ... that's a substantive right," said Nancy Cantalupo, a law professor at Barry University who has focused on sexual violence for more than two decades. "But this civil right to protection against sex discrimination does not exist in the criminal law."

Making school process more like traditional criminal proceedings would undermine Title IX's mission of equality, Cantalupo said. Criminal cases give more rights to the accused because the stakes for them are so high — incarceration or even death. Defense attorneys have access to all evidence that favors their client, but do not have to disclose any facts that support the accuser's claim. Victims do not have independent counsel, and are witnesses rather than active participants.

Colleges, on the other hand, are trying to uphold the civil rights of both students. "If you're focused on the accused individual, then there's a danger that you have forgotten about the victim. And certainly the victim's rights have been diminished by the fact that you are more focused on somebody else's rights," she said.

"We don't pass down criminal judgments," said Rob Robertson, a Southern Utah University professor who has served on disciplinary panels for about 10 years and heard one sexual assault case.

Harris also said it's appropriate for members of a campus community to judge a student's academic standing.

"This hearing has no legal basis outside the university," Harris said. "I'm very happy to be involved in what I see as self-policing of the institution."

But some argue the school-run hearings have the potential to harm both parties.

The panels are made up of amateur investigators who don't have the expertise to weigh cases of sexual violence, said Shan Wu, a former federal prosecutor who has investigated sex crimes in Washington, D.C. He now represents students in the proceedings.

"These are the toughest cases to investigate," Wu said. Volunteer juries may not have an understanding of what consent means and how to properly investigate whether it was given, he said.

"The idea that you could have a lecture to prepare for it is absurd," he said.

'A perfect process' • Weber State University Dean of Students Jeff Hurst said the disciplinary process would benefit from regular training schedules for investigators and panelists, which his office is looking into.

At the Ogden school, students choose whether to have Hurst or a committee review Title IX investigators' findings and determine sanctions. Appeals go to the vice president for student affairs.

"People can dispute it, but this is not just a cold institution solely looking out for what works best with PR and whether something is going to play well in the media or not," Hurst said. "It is people talking about individuals who have been significantly impacted by a very traumatizing event."

Students have criticized schools for taking too long to investigate allegations of sexual assault, and for levying punishments against attackers that are too lenient.

Between fall 2010 and spring 2015, more than 40 students at the state's eight largest public colleges were found responsible for sex offenses. Three were expelled, 15 students were suspended for various amounts of time, and still more were put on probation. Four received warnings.

The U. ultimately found the accused student responsible in Kavalam's case, but not before both students had graduated. Kavalam filed a complaint with the federal Office of Civil Rights in May.

Harris said students aren't the only ones frustrated by delays.

One of the panels he served on took six months to schedule a hearing, he said, due to the conflicting schedules of the students, their representatives and the panelists — who have full-time university work on top of volunteering as adjudicators.

"Moving those pieces around the board is a huge challenge," he said. "I agree it takes way too long. I just don't know what the solution is."

Deschamps said there is a natural tension between the desire to resolve investigations quickly and the need for schools to make decisions with accurate and appropriate information.

The flip side of being prompt, she said, is rushing through what are big decisions and complicated cases.

"I think the university owes it to students to do the best that they can to get it right," she said. "Sometimes that means that it's going to take longer than a student might like."

Disciplinary procedures will keep evolving as campus personnel work to identify and refine best practices and ensure that the rights and safety of students are protected, she said.

"We, like all colleges and universities, have been working to modify and perfect — I'm not sure we'll ever have a perfect process — but to make our process better."

aknox@sltrib.com, bwood@sltrib.com, astuckey@sltrib.com

 

 

 

 

 

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