By Jeffrey J. Nolan and Dr. Marisa R. Randazzo · January 4, 2016
With so much focus on adhering to Title IX and the reauthorized Violence Against Women Act (VAWA), it can be easy to overlook the need to assess ongoing safety risks in investigations and to take steps to reduce any identified threats against victims or the campus. The threatening behavior could include but is not limited to ongoing stalking behavior and threats that have been made before or after a victim files a police report or student conduct complaint — all real situations that can and do occur.
In cases where the victim fears for her or his safety, adhering to provisions of Title IX and VAWA is not enough. Steps must also be taken to identify and assess whether any threats are posed to those involved in these Title IX/VAWA investigations — and to manage the situation to reduce any such threat.
Colleges and universities in Virginia, Illinois and Connecticut are required to conduct behavioral threat assessments to reduce risk in situations where threatening behavior has been identified. In addition, numerous states have task forces that strongly encourage these assessments, and the American National Standards Institute (ANSI) has approved related standards.
We recommend involving the institution’s threat assessment team or behavioral intervention/CARE team (if they are trained in behavioral threat assessment), which can run a parallel threat assessment that is separate from, but coordinated with, the institution’s Title IX investigation.
While such coordination is not easy, in some cases it is vital. Here are three tips to help institutions maintain victim safety and campus security during Title IX and VAWA investigations:
1. Tell your threat assessment team to assess whether the victim — or others — may be at ongoing risk. Although reports of sexual assault, domestic violence, dating violence or stalking are often referred to a Title IX coordinator or investigator, there may be ongoing safety concerns that should be addressed more broadly by a threat assessment team. If the report is made to an employee who is not designated as a “confidential employee,” that person can alert the threat assessment team.
A “confidential employee” who receives a report should provide information about the threat assessment team to the victim or reporter as well as options for reporting the incident and for safety planning. If a risk is deemed sufficiently imminent to permit disclosure of privileged communications, the “confidential employee” could make other disclosures as necessary to promote safety. When victims better understand what a threat assessment team can do to enhance safety, they may be willing to have their situation reported to the team.
2. Seek advice from the institution’s General Counsel on how to address situations in which a victim requests confidentiality or anonymity. In 2014 the U.S. Department of Education’s Office of Civil Rights (OCR) published a Q&A on Title IX issues that provided important clarifications of 2011 guidance on the limits of confidentiality in certain situations. In brief, OCR recognized that institutions may not be able to respect requests for confidentiality where circumstances suggest there is an increased risk of the alleged perpetrator committing further incidents of sexual or other violence. OCR examples included other complaints about that person, history of violence and/or arrests, multiple perpetrators, pattern of perpetration, use of weapons and/or threats to commit further violence.
3. Train and practice together. Personnel involved in Title IX/VAWA cases and those involved in threat assessment matters can learn a great deal about each other’s methods, resources and obligations when they spend time together — and preferably not just on active cases. Finding opportunities to train together and to run through tabletop exercises will enhance coordination and cooperation, resulting in efficiencies when faced with a high-risk case.
Work towards continuously improving communication and coordination between Title IX and threat assessment personnel. A multi-disciplinary approach to training, assessing threats and responding to incident reports can help ensure a safer campus for all.
Jeffrey J. Nolan, J.D. is a partner at Dinse, Knapp & McAndrew, P.C. Dr. Marisa R. Randazzo is a managing partner of SIGMA Threat Management Associates.