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ever experience, or are accused of, a sexual assault on campus. Over the
last several years, Title IX procedures at schools have morphed into a
court-like process that requires students and their advocates to be fully
prepared well before a sexual assault takes place. Failing to do so can
lead to the derailing of a student survivor’s education and unraveling of
the college experience.
Title IX is a federal law that protects people from sex discrimination in
educational programs and activities at colleges and universities that
receive federal financial assistance. Among others, sexual assault is a
form of discrimination prohibited by Title IX. The law reads, in part:
“No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subject to
discrimination under any educational program or activity receiving
federal financial assistance.”
In 2020, Title IX regulations were implemented that drastically altered
how complaints of sexual assault are handled on campus. These
regulations were viewed as troublesome by some advocates for
survivors of sexual assault. Student survivors who completed or are
currently going through the Title IX process at their school under the
current 2020 rule know the hurdles and barriers that survivors must
confront when they decide to report campus sexual assault.
In late June, the Biden administration introduced proposed changes to
Title IX. However, before the 2020 rule can be replaced and the changes
implemented, a 60-day notice and comment period must take place. This
process began on July 12 and will end on Sept. 12.
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With such a short timeframe, it is important that survivors, students, and
parents pay close attention to and engage in the process. As we learned
over the last couple of years, the regulations that implement Title IX are
just as important as—if not more important than—the text of Title IX
itself. These regulations impact whether survivors and defendants are
heard and whether they are able to continue pursuing their education.
Even after the new Title IX regulations are implemented, the process will
in many ways remain more akin to a court hearing than an educational
institution’s disciplinary process. Therefore, it is imperative that
students act quickly to preserve evidence and protect their rights. This is
the case whether the student is a complainant or defendant. Students
must be equipped with the knowledge of what to do in the immediate
aftermath of a sexual assault on campus before a sexual assault ever
takes place. Hopefully, it is knowledge students will carry with them
throughout their education without ever having to use it. However, with
more than one in four female undergraduate students experiencing
sexual assault on campus, according to Campus Sexual Violence:
Statistics from RAINN, students must be prepared.
What constitutes “evidence” in these kinds of cases? Many students fail
to preserve essential evidence that would hold their assailant
accountable simply because they don’t understand what “evidence” is.
Screenshots of text message conversations, photographs of injuries,
videos sent to friends, campus security footage, journal entries, and even
correspondence/direct messages sent through social media networks
can all be considered forms of evidence that can be used at Title IX
hearings. Although campuses typically advise students about their Title
IX rights at the beginning of the school year—whether through
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orientation meetings or brochures —they seldom remind students what
kind of documentary and physical evidence can be used throughout the
hearing process to substantiate claims of assault. Because these kinds of
electronic and physical evidence can disappear or be destroyed quickly,
it is essential for students to be mindful and preserve any
correspondence that could be used to substantiate or corroborate their
allegations.
Additionally, students should consider who witnessed the underlying
events. Other student witnesses besides the complainant and respondent
can be utilized during a Title IX hearing if they have relevant information
to share. Their testimony can be a strong indicator of credible
corroboration or of fabrication. Discussing what happened with other
students who may have seen or heard something relevant can be
difficult, but may change the course of a Title IX proceeding.
Students should also be aware that rape kits are available at their local
hospital and are an essential tool in helping to prove allegations of sexual
assault. Students who are willing and able to use a rape kit after an
assault should go to their nearest hospital as quickly as possible,
preferably before showering. This will help preserve any possible DNA
evidence that may be recoverable by a medical team and could be used
to help substantiate their claims.
In addition to physical and electronic evidence, coupled with student
testimony, writing down a detailed timeline can be a supportive tool for
complainants throughout the Title IX hearing process. Our memories
naturally fade with time, so compiling a comprehensive timeline and list
of potential people and students who they may have interacted with on
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the day in question can help guide an attorney in collecting evidence and
ensuring the ability to secure the testimony of necessary witnesses.
Time is of the essence. While survivors of an on-campus sexual assault
bear no burden to report their abuse, if they choose to do so, keeping
these helpful tips in mind may mean the difference between their
assailant being held responsible or not. It also helps to ensure that
student survivors continue feeling safe on campus while being able to
pursue their educational goals.
Even if students never experience sexual assault, they may be called
upon to help their peers. In addition to understanding what action to
take in the immediate aftermath, here are a few additional things to do to
help a sexual assault survivor:
• Whether the assault occurred a while ago or an hour ago, make sure that
the survivor is safe. Most communities have rape crisis centers and
hotlines. RAINN operates a national sexual assault hotline that is free and
confidential. The number is 800-656-HOPE.
• Convey to the survivor that you believe them and what happened is not
their fault. Be nonjudgmental and supportive.
• Listen. Let survivors know that they are not alone. Convey to the survivor
that counseling, therapy, and support groups for sexual assault victims can
help them move on from the incident. Help them find local resources that
are available to support them.
Often, the hardest step for victims is the first. They must understand
what steps to take if they or one of their peers are sexually assaulted.
Title IX complainants and defendants should receive a timely and
impartial investigation and resolution of their case.
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Katie M. Shipp is a partner at Marsh Law Firm. Shipp is licensed to
practice law in both New York and Pennsylvania. Her practice is
concentrated on advocating on behalf of and obtaining justice for victims
of childhood sexual abuse and campus sexual assault. Contact her
at katieshipp@marsh.law.
Helene M. Weiss is an associate attorney at Marsh Law Firm in New York,
and special professor of law at the Maurice A. Deane School of Law, Hofstra
University. Contact her at heleneweiss@marsh.law.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of
Social Work in New York City. He is a commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Contact him at dpollack@yu.edu.
Original link: https://www.law.com/thelegalintelligencer/2022/08/18/title-ix-
required-reading-for-students-entering-college/