Douglas Smith: Chief Watchdog
The Office of Civil Rights will be on campus this week to investigate the University’s handling of the Gibbons rape investigation. They are also investigating cases at several other universities around the country. I hope that they are looking at the wider issue of how to prevent sexual assaults on campuses rather than just the handling of individual cases.
I have been trying to think about reforms that might improve the situation regarding rapes on campuses. My two biggest concerns are that the processes are reactive rather than proactive regarding sexual assaults and that many universities have very poor procedures for due process.
As a retired transplant pathologist, my experience with federal oversight has primarily been with investigations of scientific misconduct and oversight of transplant programs. I think there are some lessons to be learned from these two areas.
Since all of the proceedings in an investigation of sexual assault are kept secret under FERPA, there is no way for the public to police whether or not the University is following the published procedures. Thus, I think that some federal oversight is necessary.
When a university conducts an inquiry or an investigation regarding scientific misconduct, the university must prepare a report of their findings and their sanctions to the Office of Research Integrity. The accuser and accused are also afforded an opportunity to send a rebuttal. ORI reviews the report, along with the rebuttals, and decides whether to support the findings and sanctions. If they support the findings and sanctions, the accused may file a complaint and appear before an administrative law judge. This assures the accused of a quasi-judicial appeal that affords due process. I think that this will also reduce the number of cases that end up in civil court, in the long run.
A similar review process for sexual assaults on campuses would maintain confidentiality but allow federal oversight. The OCR would also see how each university handled such cases and what sanctions were applied. This would allow the OCR to refine its guidance and provide some consistency between universities. OCR could also spread “best practices” within the academic community.
In the transplant field, the Center for Medicare and Medicaid Services publishes statistical reports each year on each transplant program. This allows patients to have information that can help them chose which transplant program they wish to enroll in. OCR could publish similar statistical reports on sexual assaults on campuses, which would give Universities incentives to improve the handling of sexual assault cases as well as incentive to reduce the number of sexual assaults. This would also give lawmakers and federal regulators objective data on whether or not sexual assaults were increasing or decreasing and whether existing laws or regulations should be changed.
With regard to being proactive, I am seeing a number of cases that don’t rise to the level of a crime but which I would classify as predatory behavior. This includes reports of women being served alcohol mixed with Nyquil in order to get them to pass out. I was also just at a court hearing about a case where two UM students were accused of rape but the judge did not find probable cause of force but the two men had been sending each other text messages about how they were planning to set up a situation where the female student would have a “threesome” with the two men. There is also a major component of over serving alcohol to underage students in order to “get lucky”.
These kinds of predatory behavior are precursors to sexual assaults and if the University knew that such statistics would be publicly available, they would have an incentive to prevent sexual assaults rather than only reacting after a sexual assault has occurred.
It would be nice if the Universities would be motivated simply because this is a serious problem of student safety but the fact that the Clery Act was required in order to get Universities to report crime statistics shows that universities often put protection of their “brand” above student safety. I think that federal oversight of sexual assault investigations is necessary to really motivate University administrations to put maximum efforts into preventing sexual assaults of their students.
I have been trying to think about reforms that might improve the situation regarding rapes on campuses. My two biggest concerns are that the processes are reactive rather than proactive regarding sexual assaults and that many universities have very poor procedures for due process.
As a retired transplant pathologist, my experience with federal oversight has primarily been with investigations of scientific misconduct and oversight of transplant programs. I think there are some lessons to be learned from these two areas.
Since all of the proceedings in an investigation of sexual assault are kept secret under FERPA, there is no way for the public to police whether or not the University is following the published procedures. Thus, I think that some federal oversight is necessary.
When a university conducts an inquiry or an investigation regarding scientific misconduct, the university must prepare a report of their findings and their sanctions to the Office of Research Integrity. The accuser and accused are also afforded an opportunity to send a rebuttal. ORI reviews the report, along with the rebuttals, and decides whether to support the findings and sanctions. If they support the findings and sanctions, the accused may file a complaint and appear before an administrative law judge. This assures the accused of a quasi-judicial appeal that affords due process. I think that this will also reduce the number of cases that end up in civil court, in the long run.
A similar review process for sexual assaults on campuses would maintain confidentiality but allow federal oversight. The OCR would also see how each university handled such cases and what sanctions were applied. This would allow the OCR to refine its guidance and provide some consistency between universities. OCR could also spread “best practices” within the academic community.
In the transplant field, the Center for Medicare and Medicaid Services publishes statistical reports each year on each transplant program. This allows patients to have information that can help them chose which transplant program they wish to enroll in. OCR could publish similar statistical reports on sexual assaults on campuses, which would give Universities incentives to improve the handling of sexual assault cases as well as incentive to reduce the number of sexual assaults. This would also give lawmakers and federal regulators objective data on whether or not sexual assaults were increasing or decreasing and whether existing laws or regulations should be changed.
With regard to being proactive, I am seeing a number of cases that don’t rise to the level of a crime but which I would classify as predatory behavior. This includes reports of women being served alcohol mixed with Nyquil in order to get them to pass out. I was also just at a court hearing about a case where two UM students were accused of rape but the judge did not find probable cause of force but the two men had been sending each other text messages about how they were planning to set up a situation where the female student would have a “threesome” with the two men. There is also a major component of over serving alcohol to underage students in order to “get lucky”.
These kinds of predatory behavior are precursors to sexual assaults and if the University knew that such statistics would be publicly available, they would have an incentive to prevent sexual assaults rather than only reacting after a sexual assault has occurred.
It would be nice if the Universities would be motivated simply because this is a serious problem of student safety but the fact that the Clery Act was required in order to get Universities to report crime statistics shows that universities often put protection of their “brand” above student safety. I think that federal oversight of sexual assault investigations is necessary to really motivate University administrations to put maximum efforts into preventing sexual assaults of their students.
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