MSU will investigate reports of sexual assault more aggressively

August 29, 2012

Missouri State University now handles allegations of student sexual assault more aggressively and is more likely to take action against an alleged offender even if the victim reports the incident — perhaps to inquire about medical services — but wants the matter dropped.

As part of this shift in policy, the university uses a new standard of proof in sexual harassment allegations. The standard is "more likely than not," a civil threshold also called preponderance of evidence. MSU’s prior standard for concluding an assault had occurred was higher: "clear and convincing" evidence.

These changes are in direct response to a push by the U.S. Department of Education’s Office for Civil Rights. The agency wants colleges, universities and school districts to quickly and fairly take action when aware of allegations of sexual harassment, which, the office made clear, includes sexual violence, including rape.

In an April 4, 2011, letter the department clarified gray areas while outlining schools’ responsibilities. It recommended, for example, the "more likely than not" standard.

The letter cited a 2007 national study that concluded that one in five women are victims of sexual assault or attempted sexual assault while in college and most attacks happen when the victim is incapacitated by alcohol. The same study reported that 6.1 percent of males were the victims of sexual assault or attempted sexual assault during college.

The department recommended that schools do more to reduce and respond to sexual harassment, which is a violation of Title IX, a federal civil rights law that prohibits gender-based discrimination at institutions receiving federal funds. Title IX is most commonly known for requiring gender equality within intercollegiate athletic programs.

The direction from the Department of Education is helpful, said Mike Jungers, MSU’s dean of students.

"It has resolved some dilemmas that we have had perennially," Jungers said. "If there is a report of an assault and the victim does not want anything to be done, how do we balance respect for the rights of the victim and not re-victimize them, with the concerns we have for the safety of the community?"

The letter’s recommendations carry great weight and, ultimately, the department could in unusual circumstances cut the flow of federal funding to a defiant school.

"It says ‘recommend’ but I have been advised by more than one person that anything they recommend it would be prudent for us to do," Jungers said.

"When you look at what is being talked about, it is all for the good of the students," said Kim Sahr, MSU‘s coordinator of student conduct, who has received training on how to implement the recommendations.

The letter urges schools to "take prompt and effective steps to end sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation."

Sahr said that in investigating sexual harassment, she is not acting in the role of police.

"I am not building a case," she said. "I do not make any pretensions like that. I think it is negligent of a university not to investigate."

"We would never want to be accused of interfering or impeding an active police investigation," Jungers said. "If it is reported to police — and we would strongly encourage the victim to report it to the police — we will not jump ahead of them. We might be right behind them."

In the past, Jungers said, the university has followed the wishes of victims who did not want the matter pursued or investigated.

But the Department of Education made it clear colleges and universities have a broader responsibility.

"You must act because you not only have a duty to that individual, but you have a duty to other members of your community," Jungers said.

"There has never been a right feeling when the victim does not want the school to do anything," Jungers said. "We want to do something. We feel something needs to be done."

The national changes initiated by the 2011 letter have been lauded by organizations such as Security on Campus and the American Association of University Women.

They have been criticized by groups including the American Association of University Professors and a free-speech organization in Philadelphia called the Foundation for Individual Rights in Education. 

"In our society the presumption of innocence is necessary to protect precisely those individuals accused of such heinous crimes," said William Creeley, a foundation spokesman. "They have made it mandatory that our schools use the lowest judicial standard of proof."

Jungers said university employees, including resident assistants, are instructed to not promise confidentiality when a student seeks to report sexual harassment. Instead, they promise privacy, meaning only those at the university with a need to know will be informed

The letter states: "If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation."

But how does a university investigate and respond to a complaint in a manner consistent with a woman’s request that the matter be dropped?

At a minimum, Jungers said, "We can contact the alleged assailant and make the alleged assailant aware that a complaint was made. We would give them an account of what happened and seek their response and say, ‘If this were true these are the problems that you created for yourself and if this were true, as a criminal matter, these would be your problems.

"It puts them on notice that we have information," he added.

In addition, Jungers said, the university can move the suspect to another dorm if he lives in the same one as the woman reporting the harassment.

This can be done even if the woman did not want the incident pursued.

The bottom line, Jungers said, is that the federal government has made its expectations clear.

"The letter said … You must act regardless of the wishes of the individual,’" Jungers said.

Recommended steps

The Department of Education suggests that colleges and universities take these steps: 

· Distribute educational materials on sexual harassment at student orientation. (Mike Jungers, MSU dean of students, said such information is provided in talks and that there is a free class on ways to prevent sexual assault. He said MSU will review if it should do more.) 

· Offer victim services for women who have been assaulted. (MSU does this and also uses community resources such as the Victim Center, which has a 24-hour rape crisis hotline, 417-864-7233.) 

· If a woman has filed a complaint, schools should offer her escort services to and from class. (MSU does this. In addition a student can request a no-contact order which bars both students from personal and digital contact.)

Change to code of student rights

The letter from the Department of Education was also partly responsible for a change approved this month in MSU’s Code of Student Rights and Responsibilities. 

Language regarding sexual consent now includes: "Prior or current relationship status is not a determining factor in deciding if a sexual act was consensual."

Schools: Missouri State University