Mediating Sexual Assault

The University of Michigan will now allow certain cases of sexual assault to be resolved with mediation and other methods, such as sexual violence classes for accused students, a move the university believes could help victims who don’t want to pursue an arduous formal process.

Survivor advocates, however, caution that colleges often steer students toward what could be a less complicated path for the university, but one that could go against victims' wishes.

The changes come as the issue of sexual violence is exploding across the political landscape.

The university's neighbor just two hours away, Michigan State University, has been shaken by the Larry Nassar case, in which the former university and Olympic gymnastics team doctor was found to have abused more than 160 women over several decades. The fallout resulted in the president’s ouster and a recent no-confidence vote by faculty against the embattled Board of Trustees.

“In light of MSU's horrible treatment of the Larry Nassar investigation, it's ironic that Michigan is now trying to make it easier for the school to sweep violence under the rug,” said Alyssa Peterson, a state organizer with Know Your IX, an advocacy group with a name that refers to the federal gender antidiscrimination law, Title IX of the Education Amendments of 1972.

Last year Betsy DeVos, the U.S. Secretary of Education, loosened federal rules for how colleges can investigate and adjudicate sexual assault. DeVos said a Title IX-related edict from the Obama administration skewed colleges’ processes too far against students accused of rape.

Michigan appears to be following the Trump administration's more flexible guidelines by changing their policies to allow mediation and other forms of “alternative resolution” to be used to resolve sexual assault cases, though not when a student has been accused of any sort of penetrative offense.

The university also increased its timeline to investigate, hear and potentially punish a student for sexual assault allegations from a total 60 days to 75 days -- but circumstances can extend this.

The two-month time frame previously was required under the Obama guidance on Title IX, which came in the form of a Dear Colleague letter in 2011.

Many of Michigan's substantive changes to its policy were based on student feedback, specifically from survivors, said Erik S. Wessel, director of the university's Office of Student Conflict Resolution.

For some students, the formal process -- an investigation, then a hearing -- is the best route, but the university wanted to add “another tool in the toolbox,” he said.

Many tend to focus on mediation as the only method of "alternative resolution," but the university could also require the accused to take a class on sexual violence, Wessel said, but only if they admit a degree of responsibility.

Wessel stressed that point: a student would have to take responsibility for their actions. The solution might not just be mediation or some kind of course -- it could be a combination, he said.

Both parties have to agree to a solution outside the formal process. And any agreement has to be approved by the university's Title IX coordinator, Wessel said. The university will not attempt to force or guide a survivor into mediation or another avenue if they don't want it, although staff members likely would lay out all the options, he said.

The changes took effect Feb. 7. And the university has yet to use an alternative resolution for a sexual assault case.

“In no way would we ever coerce or strongly suggest in any particular way how a claimant should think, feel or want to pursue a process moving forward,” Wessel said. “It’s our role, period, to offer the options to them, to give them as much choice and voice and agency as we possibly can.”

Voluntary Mediation?

Survivor advocates fear the opposite.

Hope Brinn is a Michigan law student who has done survivor advocacy work. She also filed a complaint with the Education Department’s Office for Civil Rights against Swarthmore College, which she attended as an undergraduate.

No matter how much colleges insist otherwise, the choice to use mediation is never voluntary, Brinn said. Institutions have incentives to rely on nonpunitive measures to close sexual assault cases, because otherwise they are exposed to liability, she said.

One reason for this, she said, is that a growing number of male students accused of sexual assault have successfully sued their institutions over the years, alleging their constitutional due process rights had been violated. Recently, the U.S. Court of Appeals for the Sixth Circuit partially ruled in favor of one such student, who alleged that Miami University in Ohio had been prejudiced when it found him responsible for an assault. The lower district court had dismissed the student’s lawsuit, but on appeal, the appeals court found the student had sufficient evidence to support such allegations.

“As we've increasingly seen, perpetrators sanctioned for violating sexual misconduct policies often sue their schools,” Brinn said. “This risk is lowered by using mediation that won't place any real consequences on assailants. As such, I believe Michigan will either explicitly or implicitly push victims into mediation. This might take the form of responding to a complaint by saying something like, ‘Well, you can pursue adjudication, which will be really traumatizing and probably won’t result in sanctions, or you can pursue this mediation, which is much less traumatizing and built on ‘healing,’ but it’s totally up to you.’”

Brinn also took issue with the 75-day timeline, which she noted is the university's goal, but not a guarantee.

She said that having a prompt and clear time frame is essential to survivors’ emotional health.

“Dragging out the investigation and failing to set a boundary on how long it can take can destroy someone's mental health and thus deny them access to the educational opportunities to which they are entitled,” Brinn said.

Wessel acknowledged that advocates often are skeptical of the concept of “restorative justice,” which many do not support in the context of sexual assault cases.

However, he challenged the perception that other means of solving sexual assault cases don’t hold the accused accountable.

“I fundamentally reject that notion,” Wessel said. “It’s my strong experience in my career that a restorative process with a high degree of accountability, a high degree of support is the sweet spot to ensuring students are learning from the experience.”

After DeVos announced she had rescinded the Obama administration’s 2011 guidance and released interim measures, the Education Department told the National Association of College and University Attorneys that alternatives could be used to resolve sexual assault cases.

But the change still confused some college lawyers. One, Scott Schneider, who specializes in higher education law, told Inside Higher Ed in September he doubted that any institution employs anyone with the competency to mediate sexual assault cases.

DeVos said she intends to make permanent guidance on Title IX after a notice-and-comment period.

The department also permitted institutions to pick a higher standard of evidence in adjudicating possible sexual assaults, a particularly controversial move.

The Obama administration told colleges to rely on a lower “preponderance of the evidence” standard, which generally means there’s 50.1 percent chance that the accused individual was responsible. DeVos allowed institutions to use the higher “clear and convincing” standard.

Advocates have said the higher standard is meant to be used in criminal proceedings, not in the college adjudication process.

Michigan will keep the “preponderance of the evidence” standard, Wessel said, and he was unaware of any talks to change it.

The university fielded 218 reports of sexual misconduct, including sexual assaults and harassment, stalking and other violence from July 2016 to June 2017. But it offered interim remedies -- such as barring the parties from contact -- in just 34 cases.

Of the 218 reports, the university determined 82 didn’t fall under the scope of its policy. And in the 28 full investigations the university conducted, students weren't found to be in violation of the university's rules in about 53 percent (15 cases).

“I find it hard to believe that the vast majority of individuals making formal reports with the office would seek neither an investigation nor interim measures,” Brinn said. “Most people make reports because they want something done. I refuse to believe that the vast majority of students at Michigan who report sexual misconduct want nothing done as a result.”