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BC Revises Its Sexual Misconduct Policies And Investigative Process

The University updated its student sexual misconduct policy this summer to change the process through which cases of misconduct are handled, to include more precise definitions of key terms, and to change the way Boston College weighs requests for confidentiality in reported cases.

Cases of sexual misconduct will now be resolved through an investigative model, rather than through the student conduct hearings. These changes come at a time when campus sexual violence is a frequent topic in the national media and top government officials have pushed for reform in how colleges and universities deal with cases. On Monday, the U.S. Department of Education published new federal rules that interpret the 2013 Violence Against Women Act and amend certain provisions of the Clery Act.

“We are mindful that the topic of sexual assault is in the national spotlight, and to this end work to ensure that Boston College can be a leader in how we respond quickly, fairly, and with care for all students,” said Katie O’Dair, vice president for Student Affairs and Student Affairs Title IX coordinator. O’Dair is responsible for overseeing the University’s response to complaints of sexual misconduct.

The new federal regulations, a culmination of months of discussion between the government and a panel of expert negotiators, will require colleges and universities that receive federal funds to train students and employees on preventing sexual assault. The rules, which will take effect in July 2015, require colleges to define terms such as “consent” and specify that students can choose an adviser to accompany them throughout sexual misconduct disciplinary meetings.

According to Richard DeCapua, associate dean of students and director of student conduct, each year the University reviews the Student Code of Conduct. This summer the Dean of Students Office and O’Dair revised the sexual misconduct policy to reflect best practices and to ensure that it was aligned with legal changes and regulatory guidance.

Related: BC Evaluates Sexual Assault Resources In Light of White House Report

One of the most significant changes to the policy is to the process by which cases of sexual misconduct are investigated by the University. Previously, cases of this nature were resolved through the student conduct system, in which a board of faculty and staff would hear the case and allow each side to introduce evidence and call witnesses. The board would make a finding of either “responsible” or “not responsible.” The updated policy moves away from hearings and creates an investigative model, a move that O’Dair said brings BC’s response to such cases in line with best practice.

“With the complexities of sexual misconduct cases and the ways in which survivors respond to going through the process, we institutionally wanted to make it as easy for them as possible and have experts come in to guide the process,” DeCapua said.

The investigation process under the new model permits both the complainant and respondent to present evidence, witnesses, and have an adviser, as was permitted under the hearing board process. The change, according to O’Dair and DeCapua, however, was intended to make the process less adversarial, primarily for the complainant, or the person reporting the misconduct. Unlike the old model, students are not required to appear at investigative hearings at the same time. Each student involved meets separately with two investigators, and, if a student chooses, an adviser is permitted to be present during all meetings.

“We think this is a fair and equitable process, and unlike the hearing board model we have both an external investigator and an internal one—both [are] highly trained on the complexities of sexual assault cases,” O’Dair said.

Currently, the two investigators are Corey Kelly, the University’s student conduct manager, and Scott Roberts, the co-managing partner of Boston-based law firm Hirsch Roberts Weinstein, LLP. According to the firm’s website, Roberts has “served as an independent fact finder of claims of sexual harassment under Title IX,” and has presented workshops related to Title IX, consent, and sexual assault.

In addition to changing the process through which reported sexual misconduct is investigated, the University also took steps over the summer to compile more precise definitions of key terms involved in sexual assault. Previously, terms such as “consent” and “incapacitation” were not clearly defined in the University’s policy.

Related: Haven Program Stresses Students’ Role In Preventing Sexual Assault On Campus

The new policy defines consent as “words or actions that clearly indicate voluntary agreement to engage in sexual activity. Consent is always freely informed and actively given.” It also specifies that any person who is asleep, physically helpless, or incapacitated is unable to give free and informed consent.

Incapacitation, a term that was vaguely defined in previously policies but one that plays a significant role in most sexual assault cases, is extensively defined in the policy update. Simply, the policy states, incapacitation “is the inability to make informed, rational judgments and decisions,” but goes on to specify certain warning signs of incapacitation.

DeCapua said that last year, of the four cases of sexual assault that were resolved through the University, all involved the use of alcohol, a fact that he said makes the investigation of such cases more difficult and complex.

Although the University only investigated four cases of sexual assault last year, it reported 11 cases in its annual filing with the Department of Education. Title IX law requires universities to investigate all reports of sexual misconduct, although it does not stipulate the extent of such investigations.

BC has taken an approach that aims to balance respect for the delicate nature of sexual assault cases and its responsibility to provide a safe environment for students. Thus, while O’Dair, the Student Affairs Title IX Coordinator, conducts a preliminary investigation of all reports of sexual misconduct—such an investigation that includes reviewing the case to determine if certain patterns emerge in a particular location or with a particular student—the University does not fully investigate reports unless the complainant requests an investigation or the University deems an investigation necessary to protect the broader community.

“While rare, there are times that the University will move forward with a full investigation without the student’s participation,” O’Dair said.

The policy updates over the summer include changes to how the University weighs requests for confidentiality. Weekly, O’Dair, DeCapua, Rachel DiBella, assistant director for sexual violence prevention and response, and Thomas Atkinson, the deputy chief of BCPD, meet to review all reports of sexual misconduct and to determine how the University should respond to each case. In some cases, the University determines that it cannot honor a victim’s request that an investigation not be pursued because it would interfere with the University’s obligation to ensure a safe environment for other students.

The University’s primary confidential resource is the Sexual Assault Network (SANet), a private, anonymous hotline that operates 24/7. Persons reporting instances of sexual violence to SANet have the option of remaining anonymous, but if the caller provides a name, the SANet advocate provides it in a report to O’Dair the next day. The report also includes the nature, date, time, and general location of the incident—information O’Dair uses to track patterns and to determine University responses.

Related: Women’s Center Hosts SANet Kickoff With Sexual Assault Survivor Katie Hnida

“Student privacy is our utmost concern,” O’Dair said. “To this end we are careful about reaching out to victims who either did not give their name or who have requested anonymity.”

Students can also seek out “privileged resources,” which includes professional counselors in University Counseling Services (UCS) or pastoral counselors who are recognized by their religious order and provide confidential counseling. Such resources maintain confidentiality if requested by the student, but may be subject to certain reporting obligations under state law, such as in the cases of minors or imminent harm.

Students seeking more information about BC’s sexual misconduct policy and the various resources and support available to BC students who have experienced any form sexual misconduct should visit the Dean of Students’ website. SANet’s hotline number is 617-552-2211.

Featured Image by Daniel Lee / Heights Senior Staff

October 22, 2014