Phoenix 101: Understanding Changes to University Sexual Assault Policy

Photo Courtesy of Michael VadonThe Department of Education proposed new policies which, if passed, could change how colleges deal with sexual misconduct.

After months of speculation, the Department of Education proposed a set of policies Nov. 16 which could shape the way schools address sexual misconduct. The rules involve Title IX — a law preventing discrimination in schools based on sex — and, if passed, could require Loyola to adjust the way it deals with sexual violence.

What are the basics of the new regulations?

The regulations define what sexual harassment is, detail a school’s obligation in responding to incidents and determine how a school must respond.

Based on the proposed rules, Loyola would have to make changes to its own policy in each of these three areas, according to Mira Krivoshey, who works at Loyola’s Wellness Center as assistant director of health promotion.

“What the new regulations propose is a strong withdrawal of what schools had to comply with,” Krivoshey, who’s also a certified sexual assault advocate, said.

In the past, the Department has released guidelines which told schools how to respond, but didn’t set explicit requirements. The newly proposed regulations are different. For the first time, the Department is setting legal requirements for how and when schools need to respond to incidents. Krivoshey said many of the rules present a considerable departure from the previous Obama-era guidelines which shaped Loyola’s own policies.

The regulations will go through a “notice and comment” period where people can share their thoughts with the Department, which Krivoshey said they are required to address.

How do the new rules define sexual harassment?

The policies propose a “stricter” definition of sexual harassment, according to Krivoshey.  

They say sexual harassment means “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”

The definition also includes situations where someone, such as a teacher, offers an incentive like an improved grade in exchange for a sexual favor.

Sexual assault as detailed in the Clery Act — a federal law which requires universities to report crime and security information — would also fall under the new definition.

Loyola defines sexual harassment as “unwelcome conduct of a sexual nature,” according to Krivoshey. She said the new definition poses a “very high bar” for certain acts to be considered harassment.

What sort of incident is a university required to respond to?

If the policies are passed, universities would be legally required to address sexual harassment reports only if they fulfill certain criteria: the harassment must have occurred within a school program or activity, on the school’s campus and in the U.S.

This means schools such as Loyola might not be legally responsible for responding to cases that happen in off-campus apartments, even though Krivoshey said a majority of assaults occur in places such as off-campus apartments.

Additionally, a university must have “actual knowledge” of the incident, meaning the harassment has to be reported to a school employee who is authorized to take corrective action. This could mean a student would have to report the incident to the school’s Title IX Coordinator, not someone like their Resident Advisor (RA), Krivoshey said.

Loyola’s policies say any employee who’s made aware of sexual misconduct must report it per Title IX’s current policies. If passed, this would be one policy change Loyola might need to make Krivoshey said.

“The majority of incidents of sexual misconduct will no longer have the legal obligations to respond to,” Krivoshey said, adding it’s still unclear if Loyola may be able to extend support to students who don’t meet the criteria.

Even if Loyola can offer added assistance, Krivoshey noted other schools might not.

“We have to think about the thousands of survivors across the country whose school may not respond in the same way and what sort of protection and what sort of rights are they being guaranteed by these new laws,” Krivoshey said.

How is the university required to respond?

When a student reports an incident of sexual misconduct, they can file a complaint using a school’s grievance process, which allows a student to submit a formal accusation regarding the person who allegedly harassed them. According to the new regulations, a school would be required to use its grievance process for every formal complaint it receives.

The proposed policies lay out a number of requirements for the grievance process, including the allowance of a process called cross examination. Krivoshey said when a school investigates a case, both people involved have an advisor. This advisor can include a friend, an advocate or an attorney. During cross examination, these advisors have the opportunity to question the other party, which Krivoshey said can be traumatizing and unfair for victims.

Krivoshey said the perpetrator often hires a lawyer as their advisor, while victims generally use a friend or advocate. Lawyers are trained on how to conduct cross examination, but a victim’s advocate might not have that same training.

“So essentially what this rule does is automatically set up an imbalance of fairness in terms of who has the ability to ask questions and rattle the other party,” Krivoshey said.

For a student who doesn’t want to file a formal complaint against their alleged harasser, schools would need to offer supportive measures such as changes to a class schedule or dorm room assignments. These services would be made available to both the victim and the alleged perpetrator.

The Department of Education couldn’t be reached for comment at the time of publication. Loyola’s interim Title IX Deputy Coordinator Tim Love declined to comment.

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