College, Criminal Processes for Sexual Assault Cases Not in Conflict

By Stephen DravisiBerkshires Staff
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An emergency call box on the Williams College campus. iBerkshires spoke with the college's sexual assault prevention director and the district attorney about the roles of the educational and legal system in campus assaults.

WILLIAMSTOWN, Mass. — Last spring's national discussion about sexual assault on college campuses hit very close to home for Williams College when a former student made headlines with allegations she had been steered away from the criminal justice system and toward a college disciplinary process she found unsatisfactory.

The Boston resident went public after her alleged attacker was allowed back at Williams after a three-semester suspension, something she characterized as "a mere slap on the wrist."

The story sparked discussion on and off campus, fueled social media, angered alumni and linked Williams to the efforts by the Obama administration and two U.S. senators — one who hails from New York's Capital District — to address the issue of personal safety on college campuses.

The fundamental question for some people was why internal college disciplinary processes are even an option for investigating and adjudicating sexual violence.

But that practice — rooted in federal law — is not an issue for the county's top prosecutor, who said this month that the college and criminal justice systems should work in tandem and, in his experience, do.

"I don't see it as a threat to our system of justice," Berkshire District Attorney David Capeless said of the college disciplinary process. "As long as it's done properly and students are not steered toward it or coerced into it."

Meagan Bossong, Williams' recently appointed director of sexual assault prevention and response, is adamant that victims at the college are counseled about all the options open to them — including criminal prosecution.

"There's a process of pursuing a formal [college] disciplinary process, but before that happens, usually someone has sought the services of me, the Health Center, the Chaplain's Office, a dean or someone else on the staff," Bossong said. "In that time, people are always advised of all the resources they have available.

"People are made aware they have the option of a campus process, they have the option of a criminal process, and those two things work in parallel. You can choose one, you can chose both, you can choose neither. And you can make one choice at a particular time, and you can always circle back to it within the statute of limitations for either process."

For Williams, jurisdiction over an alleged assailant ends when he or she leaves the college community. That jurisdiction is sanctioned by a series of federal laws that began with 1972's landmark Education Amendments ("Title IX"). The process is regulated by the U.S. Department of Education's Office for Civil Rights, which has decreed that, "each school must ... adopt and publish grievance procedures providing for the prompt and equitable resolution of student and employee sex discrimination complaints."

"Colleges are required to have these systems in place by federal law," Capeless said. "What they have is not an alternative to what we have. It's a parallel existing system. ... It's not that the colleges are doing this in some 'backdoor' way."

Bossong said that while individual schools (the law applies to K-12 schools as well as colleges) have some flexibility, the process is well regulated.

"Title IX itself as a law is actually really short," she said. "Essentially what it says is that when [schools] become aware of sexual harassment, of which sexual assault is a part, they have to take steps to stop the harassment, mitigate its effects and prevent its recurrence.

"That's pretty short. The guidance comes from other documents from the Department of Education."

Congress addressed the issue of sexual assault on campus earlier this year when Sens. Kirsten Gillibrand, D-N.Y., and Claire McCaskill, D-Mo., introduced the Campus Accountability and Safety Act. It would, among other things, mandate that schools cannot punish students who reveal a violation (like underage drinking) on their own part in the process of making a sexual assault allegation. Bossong said Williams already makes a practice of not sanctioning students for such revelations.

Bossong, a 2005 Williams graduate, returned to her alma mater last spring to fill a newly created position after serving as director of community engagement for the Boston Area Rape Crisis Center. Although this is her first job on a college campus, BARCC served 40 colleges in and around Boston, so she knows the issues that claimants (victims) and respondents (defendants) face in the academic process.

Capeless is a Berkshire native who has served as Berkshire County's district attorney since 2004. He recently met with officials at Williams to talk about the process and make sure students who make assault allegations are aware of all their options.

Capeless and Bossong sat down with for separate, lengthy interviews to discuss the on-campus process and how it can complement the criminal justice system. Here are some excerpts from those interviews:

QUESTION: Do colleges report cases of sexual assault to local law enforcement?

BOSSONG: It is our practice that when we receive a complaint, we provide anonymized notification to the Williamstown Police Department. So we say, 'We were notified of an assault that occurred on this date on-campus or off-camps.' We provide that information to them.

At the moment, we don't have a formal memorandum of understanding with the Williamstown Police Department. We sort of have a process that has evolved over the years. But our hope is that they do the same thing for us. If someone brings a complaint to them that they circle back and let us know.

CAPELESS: Right from the beginning, if a girl complains, college security notifies the police, the police notifies my office. And the school will pursue it.

My understanding from talking to [Williamstown Police] Chief [Kyle] Johnson is that when [Williams] gets incidents, they report it to the police. Even when the victim doesn't want to talk to the police, they tell the police just so they know.

... Unfortunately, there's been a misunderstanding of what colleges are doing. It's too easy to think that they have every reason to suppress the idea that there are assaults on their campus. But they're not suppressing the information. Frankly, in the past, there were students who were discouraged from reporting [to civil authorities], but not now.

Colleges realize that if they report five assaults and word leaks out that there was even one other instance where someone was discouraged from reporting, the assumption will be there were dozens more that were covered up.

Also, there was a time when there was a reluctance on the part of the college to have police on their campus. I recently talked with Chief Johnson about it, and he said that's not the case.

QUESTION: If someone chooses not to pursue a criminal prosecution, the worst thing the college can do is expel them. Does not society demand more of a punishment for the crime of rape?

CAPELESS: That all depends on the facts. In some instances, I would agree with that. If by what they have done, are they inclined to do it again? Or was it an aberrant moment that's highly regretted? Sexual assault encompasses an enormous range of possibilities. Expulsion might be extreme in some cases, or it may be a slap on the wrist.

... Being suspended from school is an onerous thing. For some people, it's a bigger deal than going to court and having a judge put you on probation. Being suspended from school is a real consequence. Colleges may hold more real power over students, in some cases, than the criminal justice system.

QUESTION: If someone is expelled from school, is that noted on their transcript?

BOSSONG: It is. both suspension and expulsion is noted on that person's record.

QUESTION: Given the potential consequences of a finding of fault in the college judicial system, are you concerned about the accused receiving due process?

CAPELESS: I can only guess at their process. It's evolved over time. There are all sorts of requirements about how they operate.

BOSSONG: These conduct violations do not follow the same process as other kinds of violations. ... If you have an honor code violation, say you're accused of cheating on a test, you go before a faculty-student panel, and they adjudicate what happens. That would have a really chilling effect on people who are reporting things like sexual misconduct. So we've removed those conduct violations from the peer and faculty process.

QUESTION: So what is the process?

BOSSONG: When someone makes a report of a sexual assault or dating violence or stalking, there are a couple of things that happen. One is we immediately put in place a no-contact order between the complainant and the respondent. The reason for that is to cut down on retaliation, which is its own conduct violation, but also to minimize what happens a lot in social circles, which is someone saying, 'I'm sorry. Why don't you just retract it? I didn't mean it. It was an accident.'

QUESTION: Does the no-contact order expand?

BOSSONG: Yes, it extends to third parties, so those people can't contact each other through third parties or have third parties hassle [the complainant] or things like that.

QUESTION: What happens then?

BOSSONG: Then we use very highly trained independent investigators to do the fact-finding. That investigator speaks to both the complainant and respondent but also any witnesses that they suggest might have relevant information about what happened, and they can pull documents that might be useful.

QUESTION: Like emails?

BOSSONG: Like if someone says, 'I went back to this dorm with this person,' and the other person says, 'I didn't go back to that dorm,' we can pull the card swipe records. Did they in fact swipe into that dorm at that time? We can ask for emails, text records, social media messages, voice mail recordings. Things like that. And if someone received medical treatment, we can say, 'What would be helpful would be if you were willing to release a copy of that medical record to the investigator.'

The reason I make mention of that is a lot of people are under the impression that adjudicating these cases on campuses means we just ask one person what happened and ask the other person what happened, and if their stories differ, there's no way of figuring out what happened. That's not the case. We work as hard as possible to make sure we're reviewing all the evidence.

QUESTION: Once the process begins, what kind of representation do the complainant and respondent receive?

BOSSONG: When something is reported, both the complainant and responded are assigned a dean, and the dean is available to them to explain the campus process, to make sure they're connected to resources. ... Students can have a representative of their choice in the process. That means they can have another member of the college staff. They can choose a private attorney. They can have that person with them to advise them throughout the process.

The independent investigator comes and does the investigation. Both parties are given the opportunity to review the investigator's report ... and make suggestions.

... Once the report is finalized, it goes to a very highly trained panel of three college employees. That panel includes a representative of the Dean's Office — certainly not the dean who is advising one of the parties — and two other college staff members. Those people have been trained on issues related to sexual assault, issues relating to domestic violence and stalking and also how to apply the college's conduct policy: Here's what the policy is, here's what the preponderence of evidence standard means, here's what you need to know from the investigator's report to make a finding of fact.

After they get all the information, they make a finding about whether a conduct violation has occurred.

QUESTION: So there is never a point at which the panel is interviewing either side?

BOSSONG: No, and the reason for that is to try to avoid people having to tell their story over and over again — to have to appear before a panel of people to be questioned.

QUESTION: And neither side is subjected to a cross-examination.

BOSSONG: You're not subject to a cross-examination, but the investigator does ... go back and re-interview the complainant and respondent and say, 'Here is the account from the other person. Can you react to that?' or, 'Here is a discrepancy. Can you talk to me about why you think there's a discrepancy there?'

QUESTION: Still, that reinterviewing process sounds less traumatic than a cross-examination on a witness stand.

BOSSONG: I think our goal is to make the process not traumatizing to either party, the complainant or the respondent, or any witnesses. To the extent that that is true, yeah, because we've designed it that way. It's traumatic enough to have the events occur. I would agree we've tried to create an equitable, responsive, trauma-informed process.

QUESTION: What happens after the finding of fact by the panel?

BOSSONG: Both sides are notified simultaneously about the finding of fact. if there has been a finding of responsibility, the complainant and respondent are each given the opportunity to make a statement to the panel. It doesn't impact the fact-finding, but it's to be taken into account in for the sanctioning phase. They're given 10 minutes — the equivalent of 10 minutes — each. They can do that in person. They can do it by phone. They can do it by Skype. They can provide the written equivalent of 10 minutes.

We have a full range of disciplinary sanctions available. That includes separation from the college in the form of either suspension or expulsion. If it is suspension, that is often paired with requirements for either during the suspension period or on the person's return to the community if they choose to return to the community. For example, if substance abuse seems to have played a part in their offending behavior, that could include a requirement for substance abuse treatment. Or it could include assessment and treatment by someone with experience dealing with adolescents with sexual behavior problems.

It would be very unusual for someone to be found responsible for a serious conduct violation like non-consensual sexual intercourse or dating violence and not to be separated from the college for a period of time.

QUESTION: Other than a notation on your academic transcript, there is no other non-anonymous reporting by the college, correct? In other words, the college can't put someone's name on the sex offender registry?


... I think one of the things I always try to communicate to students and to anyone is there are things the criminal legal system can provide that a college process can't provide. So if what you want is the chance to see a person be incarcerated, than the criminal legal system is the only process that offers that. Or if what you want is for someone to be made to stand in open court and say, 'Here is my explanation for what I did,' the criminal process is the one that provides that.

The college process provides different things the criminal system can't provide.

QUESTION: Like what?

BOSSONG: If what someone wants is the opportunity to have someone removed from campus and not be a part of the college community, the college process provides that. There are other things that are available to a survivor on campus that the criminal system doesn't provide — things like housing accommodation. If you say, 'I want to be sure that even if that person stays in the college community, I don't want to live in the same dorm as them,' or, 'We're both astrophysics majors, and I cannot sit in an astrophysics senior seminar with this person,' those are things the college can provide. And the college can provide that regardless of whether there's a disciplinary process.

It's about working with people to determine what their needs are and what process accommodates them.

QUESTION: Why else might the college disciplinary process be the right choice for some victims?

CAPELESS: The college process may be a more direct and expedient process. The criminal justice system, unfortunately, works slowly. The victim may decide, 'This guy may not go to prison, but he's going to be suspended or expelled and it's going to happen quickly.'

[In an open letter to the Williams community this spring, Dean of the College Sarah Bolton noted that on-campus processes, as mandated by the Department of Education, 'concludes within 60 days,' not counting any appeal.]

QUESTION: And victims, again, can pursue both the criminal and on-campus systems?

CAPELESS: I know there have been situations where we have prosecuted and the students have been suspended while the case is active. ... Or the college may hold off on final adjudication until after the criminal process has been completed.

QUESTION: In your experience, which process do students choose?

BOSSONG: I would say most people heretofore have chosen ... to be totally honest with you, most people choose neither of the processes. And the reason for that is because there has been, historically, a lack of transparency about what people are signing up for. And in either process, it requires people to trade privacy and anonymity for resources. That's absolutely true in the criminal system, but it's true in the college system as well.

I think people have looked at it and looked at other peoples' experiences with both systems and said the process is really uncertain, it's really hard and I'm not sure I'll be able to get what I need, so there's no reason for me to go through the process. I'll figure it out on my own.

I think that when people choose a process, most of the time, they choose their college process and not the criminal legal process.

CAPELESS: People don't come forward [on campus] for the same reasons women don't come forward outside the academic context: They doubt themselves. They don't know if they'll be supported.

Other people will say to them, 'I don't think you want to do this.' And I'm talking about their friends. They're not going to hear that in conversations in college officials.

... Unlike any other crime, sexual assault is fraught with moral baggage. It weighs upon the victim. It affects how they feel about themselves and how they view what happened and how they think other people view them and what happened.

There still can be this stigma. Even if a case is tried and a jury finds without any doubt that you were a victim of rape.

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