The dilemma with University Sexual Harassment Investigations

Sexual harassment and assault on Utah college campuses that involve are governed by Title IX of the Education Amendments Act of 1972. The main language in the Act notes that no person on the basis of sex will be will be denied benefits or be subjected to discrimination under any education program or a program that recieves federal assistance.

The language is clear enough. However, the enactment and application of the regulation has been hard to navigate and has put a toll on both the victim and the alleged harasser. During the Obama administration, the U.S. Department of Education, the agency which is in charge in the enforcement of Title IX sent out guidelines to Universities on how to investigate and resolve sexual harassment on college campuses.

The provisions as applied were titled toward aiding the victim and ensuring that investigations were as painless and as less stressful as they could be. It is hard for a victim to come forward on a claim of sexual harassment on college campuses. It is hard to go through the process and talk about the situation to another person. It is hard enough to let alone confront the individual who harassed that individual. Some incidents may involve unwanted sexual communication and advances through communication. Others may involve manipulation through communication and unwanted touching. Some incidents may involve professors or other college staff.

The most severe involve actual rape of the victim. When the allegations are more severe local police and district attorneys can get involved and investigate and pursue criminal charges, not just an on-campus investigation. It is best to contact both the campus and local police investigating authorities in both instances as soon as possible. There are time restraints on when an individual can report such conduct and when it can be investigated. If it is not investigated in time, the University may not be able to intervene.

With the old guidelines, the investigations were to be swift. They also made it so the victim did not have to testify in any kind of proceeding. The guidelines also has a presumption of guilt toward the person accused and had to prove their innocence. The problem with the old guidelines is that the accused also has rights as well. The accused has a right to notice of the charges and a hearing.

Also, the burden is always on the person filing the complaint to prove the claim. There is never a burden on a defense in a criminal, administrative or civil proceeding to prove innocence. The accused is also at a disadvantage as the University typically expends some kind of resources on behalf of the victim to investigate the case and advocate for her. Typically the accused do not have such of an advantage.

Sometimes, investigations are done too quickly and the accused never has the opportunity to defend his or herself and the accused never has the chance to properly respond and challenge some of the statements of the accused. On the criminal side, sexual charges can be serious charges and they usually go to trial that involve expert witnesses. On the University side, the accused may not have such a luxury. As a result, the accused is at a greater disadvantage at the University level investigation then actual criminal charges made against them.

This has resulted in a high number of reverse-discrimination cases against Universities in violating due process rights of the accused. It has resulted in an individuals’ inability to cross-examine the witness, to properly respond to the allegations and the evidence. When one is accused of sexual impropriety it creates a huge stigma and it can be hard to overcome the stigma. The accuser could have an ulterior motive as to why they would want to bring charges against the individual that could be false, or it could have been based off of a consensual relationship.

However, if the facts are true and the relationship and actions was not consensual that led to sexual harassment, assault and unwanted touching, communication on a college campus and the accused makes such a defense, it again puts a lot of stress on the accuser to have to prove herself. On any side, if one side says one thing and the other side says another, it is hard to combat a lie. A lie is a seven-headed dragon. It is hard to combat because it is an assertion of fact that does not exist or is based on half-truths. In order to combat a lie, you have to produce evidence to disprove the lie which is a hard task. It is even harder when it is just someone’s word against the other.

The U.S. Department of Education has now issued additional guidelines to Universities on how to handle sexual harassment and assault on college campuses that affords the accuser better due process rights throughout the process as they acknowledged that the guidelines that helped protect the victim trampled on the accused due process rights in the meantime.

Despite this, the problem is that the U.S. Department of Education only issues guidelines. Universities has a rule-making body that incorporates its only policies and procedures.

As a result, even if the U.S. Department of Education is up to speed on the proper protections and procedures for both sides, a college or University may not implement those policies or procedures, or if they do implement those policies and procedures, the purpose of the policies and procedures may get swallowed up in how the University implements them.

Many Universities still have very-outdated policies and procedures involving sexual harassment.

Also, a University Professor has additional protections to his profession and job which would require a different procedure and policies as to the investigation and possible discipline and or dismissal of a professor. However, there could also be a conflict of interest in the investigation of a University professor given the Universities’ fear of legal action against them.

Most Universities do not do a good job at implementing a separate policy as it relates to investigations of professors involving sexual harassment and assault from a student. Some Universities’ policies and guidelines read like an employee handbook for private companies that do not contemplate and have policies in place to protect the legal rights of the accuser or the accused.

When a state University is involved, constitutional protections come into play as the constitution is to protect individuals from state action. Also, private Universities would have to follow essentially the same policies and procedures as to Title IX and could still be considered state actors when acting on behalf of the U.S. Department of Education in investigating and enforcing Title IX.

As a result, the enforcement of Title IX and continuity across the U.S. in investigations and enforcement is non-existent and both the accused and accusers could still be suffering from gender-based discrimination on how investigations are conducted.

Another particular problem that one Utah University faces is Brigham Young University with sexual harassment claims. Brigham Young University is a private University ran by the The Church of Jesus Christ of Latter-Day Saints. The University has a strict honor code that relates to sexual relations outside of marriage. A violation of the honor code could result in expulsion that involve violations related to sexual relations.

This has made it so the policy puts females in a position where they are concerned about reporting the violation in fear of expulsion for a violation of the honor code. There has been much debate on the issue as many claim that the policy itself is retaliatory against victims and dissuades them from reporting sexual harassment on the campus. The problem is too is that students need an ecclesiastical endorsement from their local leaders in order to attend school and their endorsement can be revoked involving facts that surround the assault.

At BYU-Idaho a bishop revoked the endorsement when a victim admitted to using alcohol the night of the event. One the one hand, the Church Universities has a standard as to use of alcohol and students agreement to honor the code. On the other hand, private Universities have an obligation under Title IX and retaliation issues for an individual reporting sexual misconduct on the school. Brigham Young University since then has implemented an amnesty policy where individuals that do report any such conduct will not be disciplined for actions at or near the time of the incident and leniency for conduct not related but found to be a violation during the investigation.

Earlier this year, students protested

-Brian Jackson is Salt Lake City based attorney that focuses his practice on civil rights and employment law and discrimination-based claims that includes representation of both the accused and the accuser in college and University sexual harassment claims as well as investigations into Universities policies and procedures and claims against University.