UNC-Chapel Hill announced a new sexual misconduct policy Thursday, more than a year after five women filed federal complaints against the university for its handling and reporting of sexual assaults.
The new policy, which took effect immediately, applies to students and employees. It revises the procedures for the university’s investigation and adjudication of sexual violence, gender discrimination and harassment, interpersonal violence, and stalking. It was crafted from the recommendations of a 22-member task force that worked for months on the details.
UNC-CH Chancellor Carol Folt said the policy complies with federal regulations and is consistent with guidance from the White House Task Force to Protect Students from Sexual Assault. Folt was part of two meetings on the issue at the White House.
“The adoption of this policy is a vital step in taking a wide-ranging approach to ensuring a safe and welcoming campus,” Folt said in an email to the campus community.
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The policy comes as sexual violence has become a dominant issue within higher education nationwide. As of Thursday, 76 colleges and universities are being investigated by the federal government under the Title IX gender equity law.
In North Carolina, UNC-CH and Guilford College are under investigation for Title IX violations related to sexual assault. UNC-CH is also being investigated for its reporting of sexual assaults under federal law regarding campus crime statistics.
Folt said she didn’t know when the federal inquiries would be resolved. But she said the national conversation had mobilized universities to improve campus safety.
“This is a healthy time,” she said. “I think the country is really addressing this. I think it’s a very complicated issue.”
Landen Gambill, a UNC-CH senior and one of the women who filed the federal complaint, said there are many positive aspects to the policy. She likes that it clearly defines consent and addresses dating abuse and stalking.
But she still has an overriding concern – the university’s past reluctance to hold offenders accountable.
“They have a lot of hearings, they investigate a fairly good number of cases, but the number of perpetrators they actually find responsible in the first place is extremely low,” Gambill said Thursday. “That is something that I worry this new policy won’t necessarily address.”
Among the new policy’s key elements:
• A victim can choose a traditional adjudication process or a voluntary resolution that would involve mediation, “restorative justice” or an alternative that would not include discipline of the accused party. This alternative would avoid a confrontational hearing.
• Under the adjudication option, a trained university investigator would seek the facts and issue a finding on whether the accused is responsible. A sanction would be issued in the event of a guilty finding. Challenges to the finding could go to a hearing panel or administrative review.
• Only faculty and staff will serve on three-member administrative hearing panels, so students will not sit in judgment of other students.
• The issue of consent is more clearly defined as an affirmative conscious choice by each participant to engage in sexual contact. Consent can’t be inferred from silence, passivity or lack of resistance.
• A student who is incapacitated by alcohol or drugs is considered unable to give consent, the policy says. Incapacitation is defined as a state beyond intoxication, impaired judgment or drunkenness.
The policy emphasizes that consent must consist of a positive communication, rather than a failure to say “no.”
“It’s a critical element,” said Christi Hurt, who chaired the task force. “I call it the heart of our policy. I think that we have an affirmative definition of consent is really exactly what our students asked us to do.”
Henry Clay Turner, a Chapel Hill attorney who has represented several people who reported sexual assaults, said the policy’s definitions are a welcome change, which he called “thorough and thoughtful.”
A flaw in the policy?
But Turner pointed out what he said was an enormous flaw in the policy that could bring another legal challenge under federal law.
He gave a hypothetical example. If one student is found responsible for a sexual assault by a university investigator, then that student can request a hearing before a three-member panel. But if that student is found not responsible for the assault, the accusing student does not have an automatic right to appeal for a hearing. The case would then go before an administrator for review. Only if the administrator disagrees with the investigator’s finding would the accusing student then get a hearing.
The setup treats the accuser and the accused differently, he said. And the process puts too much power in the hands of university Title IX investigators, said Turner, whose client last week filed suit against the university related to the previous policy.
“This is a huge change and it’s a really bad change, particularly because this office has shown no aptitude for conducting professional or prompt investigations,” Turner said. “So we’re giving them additional responsibility and an added adjudication responsibility.”
Nationally, universities have been criticized for being lax in dealing with sexual assault and minimizing crime reports to protect their images. A recent survey of 350 schools by U.S. Sen. Claire McCaskill of Missouri found that 41 percent hadn’t conducted a single investigation of a sexual assault in the past five years.
Concerns about fairness and safety on U.S. campuses have prompted changes in Washington. Besides the involvement of the Obama administration, a bill introduced in Congress last month would force new requirements and stiff penalties for universities that fail to comply with Title IX.
The legislation would mandate annual standardized surveys to get a more accurate picture of sexual violence on each campus. The results would be published online for parents and students to see.
Surveys would be important, because research indicates that sexual assault is grossly under-reported. One 2007 survey of two large universities found that 19 percent of female students experienced an attempted or actual sexual assault.
Folt said UNC-CH is working with the Association of American Universities to build such a campus climate survey.
‘Glad to see progress’
The UNC-CH women who filed the original complaint have become major players in the issue, helping to create a national network to organize students and coordinate advocacy. Two of them, Annie Clark and Andrea Pino, helped to start an organization called End Rape on Campus.
Clark, an alumna, said Thursday that she and others were calling for a new policy in 2011, before the federal complaints were filed.
“I wish they would have listened at that point, but I’m glad to see progress being made,” said Clark, who added that she had not fully reviewed the details of the policy.
Folt praised the women for their activism.
“The students from UNC and others who have been advocates and activists have actually had a very important role in moving this conversation forward, not just at Chapel Hill but at every campus in America,” Folt said. “So I give them full credit for it. I look at them as trying to contribute in extremely productive ways at an issue that is of great impact for all of us.”
Gambill said she’s looking forward to graduating. The man she accused of assault is still on campus, she said.
“I will not ever believe that the university is acting in good faith to protect survivors,” she said, “until I see perpetrators kicked off campus.”