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Colleges revamp protocol to handle rape allegations

  • Jasjaap "Jess" Sidhu, a member of the college's discipline committee, Tuesday at Amherst College.
  • Jasjaap "Jess" Sidhu, a member of the college's discipline committee, Tuesday at Amherst College.
  • Jasjaap "Jess" Sidhu, a member of the college's discipline committee, Tuesday at Amherst College.

— The first time Jasjaap “Jess” Sidhu, a 21-year-old Amherst College junior, had to rule on an allegation of rape, he was understandably nervous.

“It’s one of the biggest moments in someone’s life,” he said last week, in an interview over coffee at a downtown cafe. “I knew I couldn’t make a mistake.”

In the three sexual assault cases in which Sidhu presided on the college’s Discipline Committee, alcohol obscured the lines of consent and played a major role in the outcome, he said.

“In general, alcohol is where a lot of the controversy around sexual assault stems,” Sidhu said. “If the victim says, ‘yes, I drank and because of too much alcohol I couldn’t consent,’ — did the accused know that? Should he have known that?”

Sidhu is one of about 100 students, faculty and staff among the Five Colleges charged with deciding if a student violated a college’s code of conduct, infractions that include anything from cheating to rape. Nationwide, hearings on sexual assault have come under scrutiny in light of new federal guidelines issued last year. In addition, a spate of college students who are sexual assault victims have come forward recently with stories of frustration over the process and types of sanctions meted out against the accused.

In a review of 10 New England universities — including the University of Massachusetts Amherst — by the Center for Public Integrity, of the more than 240 alleged assaults the schools reported between 2003 and 2008, four led to expulsions. But there is evidence to suggest those rates are changing in some places. In the last three completed sexual assault hearings held at Hampshire College, for example, three students accused in those cases were expelled from the college — and there were two cases under way as of this month, according to college administrators.

In the cases Sidhu has adjudicated, the committee came to one guilty finding, and found two students accused of sexual assault not guilty. Typically at Amherst College, a person who is found guilty of sexual assault or rape is suspended from the campus until the victim leaves or graduates, Sidhu said.

“A woman can feel raped and that’s completely legitimate,” Sidhu said, “but that doesn’t mean the accused violated the honor code and that is the hardest thing to say.” He later added, a rape “complaint is genuine and there is no reason to believe otherwise.”

Federal requirement

Colleges and universities are mandated to offer sexual assault victims a grievance hearing under Title IX, the 1972 federal law that legislates equality in academia and considers sexual assault a form of discrimination. Many are now in the process of reviewing those protocols and putting new plans in place. Amherst, Hampshire and Smith colleges as well as UMass are all in the midst of policy reviews assisted by students and faculty.

Some changes, like hiring outside investigators and changing the way hearings are conducted, have already been implemented.

The Five Colleges have various names for these hearing boards. At Amherst College it’s the Discipline Committee, at UMass it’s the Sexual Harassment Board and at Smith College it’s called the Judicial Board, for example. But each is faced with the same dilemma: how to equip regular people who have no criminal justice background to get to the bottom of rape accusations — one of the most difficult and complicated crimes to successfully investigate and prosecute.

Up until early 2011, the relative success of those boards was spotty at best. Some schools created boards and filled them with people trained in case law, victim mentality, how to ask investigative questions and spot lies. But critics say they often were not up to the task.

One former Amherst College student, Angie Epifano, wrote an article about her experience, how the college handled her case, and what she described as a culture of silence around rape. Printed in the Amherst Student, the story was picked up by blogs, then national news agencies. The handling of Epifano’s case is currently the subject of an internal investigation at the college.

And for other schools the hearing process was “brutal,” said Renee Freedman, deputy Title IX officer at Hampshire College. In some instances, victims faced their alleged rapists and debated with them, in front of a panel of strangers or peers, as to whether the assault occurred.

Sexual assault survivors were asked inappropriate questions about their prior relationships, character witnesses were called in to speak on behalf of the accused. Lawyers were sometimes involved. Sometimes the cases were investigated by someone in the dean’s office prior to the hearing and sometimes they weren’t.

“It was incredibly difficult for both the complainant and the respondent,” Freedman said of a protocol that was recently discontinued at Hampshire College. “Sometimes in the hearing process (the outcome) was dependent on the skills of the two interviewed students presenting their cases. It wasn’t really about what had happened. It was who presented their story better. ... You had these traumatized students trying to tell their stories and they weren’t always competent to do that.”

A challenge to do better

In April 2011, the U.S. Department of Education’s Office of Civil Rights issued a letter to institutions of higher education, the “Dear Colleague” letter, defining how Title IX should be applied in a way that had big implications for the sexual assault hearing process. Just about every campus was affected, including the Five Colleges, many of which launched re-evaluations of their procedures in light of the letter.

“The ‘Dear Colleague’ letter was the Rosetta Stone to Title IX, which is one sentence long and doesn’t tell you how to comply with it,” said Brett Sokolow, founder of the National Center for Higher Education Risk Management. The Pennsylvania-based firm conducts Title IX training, serves as legal counsel to colleges and produces white papers on best practices for college hearings.

“You don’t prove a civil rights violation through an adversarial due process,” Sokolow said. “You guarantee no good outcome for either person, and you’ll never know what happened. The adversarial hearing relies on 18-year-olds telling a group of strangers what happened. You’re trusting them not to lie.”

In its “Dear Colleague” missive, the Department of Education said that in cases of allegations of sexual assault, a college must investigate them in a timely manner, protect the victim from her alleged attacker and any reprisal, and provide a grievance process that relies on the preponderance of evidence — meaning it’s more likely than not a crime was committed — to determine guilt, among other things.

Many colleges and universities are taking note. Sokolow has seen the number of people who attend his firm’s training sessions on how to address sexual assault skyrocket. It used to be that he’d hold a session and a handful of people would attend. But since “Dear Colleague,” his firm has trained more than 1,000 people.

But Alison Kiss, executive director of the Clery Center for Security on Campus, said while institutions of higher education are generally moving in the right direction, the commitment to ending rape could be stronger.

“I don’t believe there is a true commitment to invest in a poor economic time,” Kiss said.

Changes made

At each of the Five Colleges, the hearing procedures are similar. Each school forms a group to hear charges that a student may have breached the honor code or student code of conduct. These violations can include rape allegations or charges of cheating, fighting, underage drinking, etc. The groups include students and faculty and sometimes staff. Led usually by someone from the dean of students’ office, the hearing is also attended by a record keeper and sometimes the school’s attorney.

Members of the hearing board can be appointed by the dean, elected by students, or selected randomly by computer, as is done at Hampshire. Before a hearing begins, a student must file a complaint and usually an investigation is conducted by the Title IX coordinator or designee. A police investigation may be going on concurrently.

A student can go through an informal mediation process if she chooses or, if there is enough evidence, a formal hearing can proceed. In some cases, a student accused of sexual assault will withdraw from the school after reaching an agreement with a victim and deter any disciplinary proceedings.

Pamela Nolan Young, Smith College’s director of institutional diversity, said in a Title IX investigation, “the relevant parties and witnesses are interviewed, evidence may be gathered and conclusions are drawn based on the facts and the evidence.”

Amherst College is now looking to hire an outside investigator, a move Sidhu says will significantly improve the hearing process.

“What we do in the hearing, the investigator will now do before it,” he said.

Under new sexual offenses policies and investigatory processes that went into effect this semester at Hampshire College, the college now has two trained school investigators who gather evidence interviewing victims and alleged assailants and preparing reports to its board. No first-year students can serve on its board.

Seeing both sides

Sidhu, a member of the student government, was elected to Amherst College’s Discipline Committee. “I thought this would be something I would be good at and that it would be a good experience,” the history major said. “I have an open mind, I can see both sides of things, so I thought I could serve well when the time came.”

Typically, board members are trained in the judicial process, school policies, sexual assault and hearing sexual assault cases, how to ask questions, what reasonable offenses and discipline are and how to deliberate. At the Five Colleges, training can last anywhere from a day to two days. Smith College breaks up its training into three half-day sessions spread out over the academic year.

“They’re trained intentionally, purposefully, on anything from alcohol violations to sexual assaults and anything in between,” said Julianne Ohotnicky, Smith’s dean of students.

At UMass, the Center for Women and Community does some training with board members. Rebecca Lockwood, the center’s associate director, said her goal in training people is to have them gain a deeper understanding of how to ask questions that don’t blame the victim and a sense that just because someone looks like a nice guy, it doesn’t mean he didn’t commit a crime. She also noted that sometimes victims act in ways that may seem surprising during a hearing — lashing out or giggling — and these behaviors can be reactions to their trauma.

Typically, the victim and accused write statements about the incident and submit them to the board ahead of the hearing. They may also submit other evidence like a text message transcript or emails and sometimes impact statements. The Title IX investigator may also file a report. In the case of rape, police reports are rarely provided to the board. UMass Deputy Police Chief Patrick Archbald noted that state law forbids police from sharing rape reports with the dean of students for confidentiality reasons.

Both the victim and accused are paired up with college-supplied advocates who guide them through the process. Some schools allow the students to have a lawyer present. Amherst ended this practice last year. UMass continues with it, although both the victim and the accused must have lawyers for them to be present and neither attorney can speak during the hearing.

Once the committee has read the statements and reviewed the evidence, the board can question the victim and the accused separately and witnesses may be called in. Typically, the victim chooses not to be in the room with the accused rapist and her advocate stands in to report back. Both the victim and accused are given an officer from the college who can help present their cases.

The hearings can be all-day events, said Sidhu, sometimes going from 9 a.m. to 8 p.m. At the end of the hearing, the victim and accused get to make closing statements and then the board goes into deliberation, which can take a couple of days.

“It’s a much better process than it used to be,” said Lockwood, from the Center for Women and Community. “I think it has resulted in more students feeling like they can come forward and get some sort of justice.”

Usually, determinations of guilt do not have to be unanimous, but a majority of members must find that it is more likely than not that a rape or sexual assault was committed to find someone guilty.

At UMass, if someone is found guilty, the case moves on to another committee, which decides the sanction. Some of these boards, like the one at Amherst College, have the added burden of meting out sanctions for the guilty.

“It’s a very, very stressful and emotional process,” Sidhu said. “I’ve seen multiple faculty members cry at these hearings.”

A board’s sanctions can usually be overridden by a chancellor or dean in extreme cases.

Appeals processes are available at the Five Colleges, although what can be appealed varies. At UMass, for example, a student cannot appeal the decision of the board, unless new evidence is discovered, but can challenge the sanction. At Amherst College, a student can challenge any part of the process.

While the Five Colleges and higher education facilities across the nation review their sexual assault policies, there is one thing Sidhu said he hopes does not change: students should always be represented on the hearing boards. Faculty and administrators don’t understand the nuances of student life, he and others inveterviewed said.

Things like how long it takes to get from one building to the other, or how the dorms are laid out have factored into the sexual assault cases he has served on.

“It’s a different experience. If students weren’t on the committee I couldn’t tell what the outcomes of those cases would have been because faculty just don’t know what student life is on campus,” he said.

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