Campus officials are commonly confused about their legal obligations in resolving reports of rape. The federal civil-rights law known as Title IX compels them to take action, periodically updated rules have offered some direction, and a new series of questions and answers from the U.S. Department of Education attempts to provide additional clarity.
Since the Education Department’s Office for Civil Rights issued prescriptive guidance in the form of a "Dear Colleague" letter, in 2011, it has been collecting questions from students, colleges, and professional groups, such as the National Association of College and University Attorneys.
The 52-point Q&A, released on Monday along with recommendations from the White House Task Force to Protect Students From Sexual Assault, goes into significant detail—and repeatedly reflects the contention by many victims that the campus reporting process retraumatized them.
The document asks, for instance, what happens if a student is found to have sexually assaulted a classmate, and remedies require separating the two, but they’re in the same major? The answer: Consider alternate solutions that minimize the burden on the victim, such as arranging for the perpetrator to take online courses or independent studies. What if, another question asks, at a Take Back the Night event, a student speaks out about having been assaulted—is the institution required to investigate? In that case, no, but it should provide information at such events on how to report an incident.
Any college that wasn’t already reviewing its response to sexual violence in this recent wave of attention might start with the Q&A. Of course, interpreting guidance is no easy task. "We can write it in policy, but then we have to think about how it gets practically implemented," said Gina M. Smith, a lawyer and former sex-crimes prosecutor who advises colleges on sexual misconduct. And this week’s document, she said, "cannot anticipate every combination and permutation of the facts."
With so much material released by the Obama administration on Monday—including resources and sample policies for institutions on the new website NotAlone.gov—several experts said they still hadn’t read the Q&A by Tuesday afternoon. "It will take some time to study all that the task force issued today," Molly Corbett Broad, president of the American Council on Education, said in a written statement.
Careful study is what the Office for Civil Rights, or OCR, expects. "To gain a complete understanding of these legal requirements and recommendations," the agency says in the introduction to its Q&A, "this document should be read in full."
For now, here are a few focal points of the guidance.
A college can often honor the confidentiality of a student who reports an assault.
Such requests are common, the guidance says, and "OCR strongly supports a student’s interest in confidentiality in cases involving sexual violence." A college can grant that request, the document says, unless doing so would compromise the safety of the reporting student or others.
An adviser should explain to the student, meanwhile, that maintaining confidentiality may limit the college’s "ability to respond fully to the incident, including pursuing disciplinary action against the alleged perpetrator." Still, the Q&A recommends alternative measures in such cases, including "increased monitoring, supervision, or security at locations or activities where the misconduct occurred," and putting an alleged perpetrator on notice without revealing the accuser’s identity.
The White House website offers additional policy guidance on this point, Sample Language for Reporting and Confidentially Disclosing Sexual Violence.
Some campus officials are obligated to disclose reports of sexual assault.
Any individual designated as a "responsible employee" must report incidents of sexual violence to the campus Title IX coordinator. A responsible employee, according to the guidance, is one who "has the authority to take action to redress sexual violence," who has been given that duty, or whom students could reasonably believe served in that role. If a student reports an assault to such a person, he or she must disclose the relevant details to the Title IX coordinator: the names of the parties involved as well as the date, time, and location of the incident.
Whether resident advisers, or RAs, qualify as responsible employees has been a matter of debate, and the new guidance acknowledges that their responsibilities vary among institutions. But "if an RA is required to report other misconduct that violates school policy," the Q&A says, "then the RA would be considered a responsible employee obligated to report incidents of sexual violence."
Mental-health and pastoral counselors, health-center employees, and anyone who works at a sexual-assault center or women’s center (including front-desk staff members) are not required, the document says, "to report incidents of sexual violence in a way that identifies the student without the student’s consent." That confidentiality, it says, can "ensure that students will seek the help they need."
Title IX protects all students, and campus officials should treat LGBT complainants equally.
In response to reports of sexual violence involving students of the same sex, a college must use the same procedures and standards it does to investigate and resolve all complaints, the guidance says.
"Indeed, lesbian, gay, bisexual, and transgender (LGBT) youth report high rates of sexual harassment and sexual violence," the Q&A says. "A school should ensure that staff are capable of providing culturally competent counseling to all complainants."
The Human Rights Campaign and the Gay Lesbian & Straight Education Network, known as Glsen, both welcomed that attention in the guidance. "Make no mistake: Transgender students are protected by Title IX, and the U.S. Department of Education stands ready to help them," Eliza Byard, Glsen’s executive director, said in a written statement.
The national campaign Know Your IX, composed chiefly of students and young alumni, has advocated for campus systems sensitive to special populations. This week’s guidance also discusses how to support students who are in the United States illegally, international students, and students with disabilities.