A University's New Rules on Rape

The University of Minnesota -- site of a high-profile case in which football team members reportedly gang-raped a female student -- has reworked its sexual harassment policies and conduct code, a move many have applauded but that some victim advocates say could allow students who were complicit in a sexual assault to escape unpunished.

The change approved by the university’s Board of Regents Friday follows the Education Department's decision to withdraw guidance from the Obama administration on how colleges should investigate and adjudicate campus sexual assault. Though Education Secretary Betsy DeVos has given institutions more flexibility in sexual misconduct cases, none, including Minnesota, have publicly strayed from the Obama-era rules clarifying how colleges should interpret Title IX of the Education Amendments Act of 1972, the federal law barring gender discrimination.

By and large, the new policy out of Minnesota simply condenses the university’s many scattered procedures into a single document. This was a requirement of the agreement the institution made with the Education Department's Office for Civil Rights in fall 2015 after a Title IX complaint against it.

The policy adds new definitions, laying out, for instance, what “incapacitated” means. That’s an example of an internal definition used by the university's Title IX office that was previously not made public, said Tina Marisam, director of the Office of Equal Opportunity and Affirmative Action and Title IX coordinator.

But one inclusion to the student code of conduct has concerned some advocates for sexual assault survivors -- it’s the new definition of “assisting or abetting” in prohibited conduct (which doesn’t apply only to sexual misconduct).

A student or group “assists or abets” when they help another person engage in misconduct and “they intend the misconduct to occur” or know that “their actions are significantly likely to help the other person,” which some advocates say is too high a bar to implicate anyone under the new policy.

This new provision likely would have come into play in the recent case when the university suspended 10 football players for their role in an alleged gang rape of a female student in September 2016. Only five of the 10 were disciplined, either with an extended suspension or expulsion. The case received widespread media attention because other members of the football team declared a boycott unless the 10 suspended or expelled players were reinstated, but they backed down after some of the more sordid details of the encounter were published in the press. Initially, some alumni were sympathetic to the boycott, accusing the university of a lack of due process in the case.

Kristen Houlton Sukura, executive director of the nonprofit Sexual Violence Center in Minneapolis, called the “assist or abet” portion of the conduct code “ridiculous.”

She said that to a degree it alleviates the responsibility on bystanders to act if they witness circumstances that could lead to a sexual assault.

“Let’s say you see someone leading an incredibly intoxicated person to a bedroom,” Houlton Sukura said. “The burden is that you need to have wanted her to get raped? It’s an unreasonable standard. I find it extremely frustrating.”

The university at one point had released another draft of the policy that included different language, saying that a person who assisted or abetted was someone who “reasonably should know” misconduct would happen.

Marisam said the university received feedback that such a requirement would “capture more conduct than we intend to prohibit under this policy.”

Alyssa Peterson, representative of the national victim rights group Know Your IX, said she was unsure how such a standard could be enforced. She said she could not understand how a survivor could characterize the intent of bystanders -- whether or not the person intended the rape to happen or not.

“I’m not sure how this would even work,” Peterson said.

Others who work with victims, however, have lauded the university for its more detailed policy.

Katie Eichele, director of the campus’s Aurora Center for Advocacy and Education, which assists students affected by sex crimes and violence, said she was thankful that the regents passed a policy that outlines who should report sexual assaults, and when.

The regents thus far have only approved a broad-scope policy and the changes to the code of conduct. More comprehensive sexual harassment procedures, in a document more than 20 pages long, is still being reviewed by the public and the board intends to vote on it in December, Marisam said.

The chairman of the regents, David J. McMillan, did not respond to a request for comment.

Eichele said she was pleased that the new definitions both firmly hold students accountable if they don’t meet the new rules and help victims by clearly describing certain actions, such as sexual contact or consent.

The university is providing a fair process both for those accused of sexual assault and the victims, said Traci Thomas-Card, membership and advocacy services manager for the Minnesota Coalition Against Sexual Assault.

The policy isn’t a drastic departure from previous practices, Thomas-Card said.

“I think the university for the most part has done an extraordinary job in responding in a timely matter [to those] who have come forward,” she said.

Most of the advocates interviewed said they appreciated the university still using the standard of evidence required under the Obama guidance, even though DeVos has rescinded it. Obama’s department required “preponderance of evidence,” the standard used in civil cases, which means there’s a 50.1 percent chance that the accused is responsible. With the “clear and convincing” standard some have asked for, the threshold is closer to a 75 percent chance. New information from the Education Department now allows institutions to use either standard.

"In our perspective we have very strong policies now, and practices, that provide for a fair process and for robust procedural fairness protections," Marisam said. "We're not making our policy based on the new discretion that we have; we think it's wise to wait until the Office for Civil Rights issues its formal guidance and we'll reassess at that point."

All the changes approved so far take effect Jan. 1, as will Minnesota's lengthier sexual harassment policy if the regents approve it at their December meeting.