How to Comply With the Dept. of Ed’s Title IX Sexual Violence Guidance
Prompt and appropriate investigations of on- and off-campus sexual assaults and harassment will help to ensure your campus will meet the U.S. Department of Education’s expectations.
An example of such a setting includes a victim continuing to encounter his or her assailant in classes, cafeterias or residence halls. When an institution addresses sexual violence, even if it occurred off-campus, it must do so using procedures that comply with Title IX guidelines.
Conduct More Than Just a Police Investigation
When institution officials become aware of possible harassment, their first obligation is to investigate the information, whether the victim or a third party brought it to their attention. Institutions are expected to coordinate their law enforcement and Title IX responses to such complaints.
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While a school resource officer or campus police officer may conduct a law enforcement investigation, “because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX,” writes Russlynn Ali, the assistant secretary for civil rights at the U.S. Department of Education and head of OCR. This means that when a sexual assault is reported to campus law enforcement, in addition to conducting a law enforcement investigation, the department should “notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint, and…report incidents of sexual violence to the Title IX coordinator if the complainant consents.”
Use the Preponderance of Evidence Standard
A school will not meet its Title IX obligations solely by conducting a law enforcement investigation because conduct “may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation.” For example, the new guidance makes it clear that institutions must resolve Title IX disciplinary matters using the “preponderance of the evidence” standard (meaning it is more likely than not that sexual harassment or violence occurred). Disciplinary procedures should not use the higher “beyond a reasonable doubt” standard required in criminal proceedings or the intermediate “clear and convincing” standard (meaning it is highly probable or reasonably certain that the sexual harassment or violence occurred).
Train Officials How To Identify and Respond
All school officials who are likely to come into contact with the victims of sexual violence, including all law enforcement unit employees, are expected to be trained on how to identify covered sexual harassment and violence as well as how to respond under institutional procedures (police should refer any non-criminal reports to other channels within the school for resolution). This training should also cover the psychological needs of the victims and survivors of sexual violence so that police understand how victims may respond. It also prepares police to be as sensitive as possible to victim needs and prevent any revictimization from occurring. Police should always be prepared to make referrals to counseling services available either on or off campus, and other resources available to victims and survivors. Local rape crisis centers, and on-campus women’s centers or counseling departments may be important resources for this training.
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