(Disclaimer 1 — I am publishing this on behalf of the author(s) as they wish to keep their identity(ies) private. They will be answering questions in the comment section under the burner account "gulcstudent.")

(Disclaimer (2): The author is a current Georgetown Law student. AASV and the author took no part in the new policy; all analysis is based on publicly available information.)


Members of the Georgetown University (GU) community recently received an email revealing a new Georgetown subdomain devoted to "sexual misconduct," including sexual assault and harassment, and a revised student code. The email bore the stationary of the Office of the President and was electronically signed by President DeGioia. Below, I explain how the email, the policy, and the website are all encouraging signs that Georgetown's administration is ready to take sexual violence seriously.

Why does it matter who sent the email?

It is significant that the email came from President DeGioia. Alternative outlets could have been:

  • Office of General Counsel, sending the message that GU is primarily concerned with legal compliance;
  • Deans of each campus, giving the policy a more patchwork feel; or
  • Deans of Student Life, implying that the policy primarily concerns studentconduct.

Instead, the message came from the President, who presides over all Georgetown campuses and functions. DeGioia emphasized that the policy and website are designed to serve as "a central resource for students, faculty and staff" (emphasis added), making it clear that this and any other new initiatives will take a holistic community approach to preventing and responding to sexual misconduct.

With Department of Justice investigations into sexual misconduct policies and practices proceeding against higher learning institutions around the country—to ineffectual results, prompting President Obama to instate a new executive Task Force on campus sexual violence—it is encouraging to see Georgetown University take a proactive role in recognizing that sexual violence is a common and devastating problem for many of its students, staff, and faculty.

Did anything change, or is the website giving us old information?

Most of the information on the website is old information, although almost all of it has been linguistically revised or presented in a new fashion. (That doesn't mean it isn't a big deal! See below.)

The key bit of new information is the revised global policy statement for the entire University, which clarifies the definition of "sexual misconduct." Arguably, the policy does not formally alter the University's legal obligations, because the policy is driven by compliance to well-established federal and local laws; however, functionally, by explicitly clarifying its expansive obligations under the existing legal regime, the new policy will significantly alter the way that GU complaints are processed and decided.

The Policy: Definitions

Unlike the old policy, the new policy clearly and explicitly covers relationship violence, stalking, and retaliation—important forms of abuse that are often minimized and stigmatized, and frequently occur on college campuses—among other prohibited forms of sexual misconduct:

This policy prohibits sexual misconduct that constitutes sexual harassment, sexual assault, relationship violence, stalking, and related claims of retaliation.

In contrast to this simple, plain English statement, the old/current Law Center handbook (which is undergoing revision to comply with the new Policy Statement) defines relevant forms of sexual misconduct as subcategories of sexual harassment:

Sexual harassment includes sexual violence which can include rape, assault, sexual coercion, and sexual battery.

In the old policy, sexual harassment is further defined in stilted, confusing legal jargon without reference to controlling federal and local law:

For the purposes of this policy, sexual harassment is defined as any unwelcome sexual advance, request for sexual favors, or other verbal or physical conduct of a sexual nature when:

  1. Submission to such conduct is made explicitly or implicitly a term or condition of an individual's employment or academic advancement; or

  2. Submission to or rejection of such conduct is used as a basis for making an employment or academic decision affecting an individual; or

  3. Such conduct has the purpose or effect of interfering with an individual's work or educational performance, or of creating an intimidating, hostile, or offensive environment for work or learning.

The new policy adopts the old policy's stilted, legalistic definition of sexual harassment; however, the policy continues, supplementing the obligatory legal jargon with detailed "interpretative guidance" in a form familiar to law students. More importantly, the new policy does not stop at sexual harassment: it provides similarly detailed definitions for

  • sexual assault (with further sub-definitions of sexual acts, sexual contact, consent, force, and forcible);
  • relationship violence (sub-defining domestic violence vs. dating violence);
  • stalking;
  • who is a student (defined expansively); and
  • who is an employee.

The definition of sexual assault is very broad and detailed; it is divided into five subcategories that cover a variety of states of mind and both nonconsensual "sexual acts" and "sexual contact." It focuses on the acts and intents of the actor, rather than pivoting on the victim's behavior or consent. It adopts a high standard of liability (resembling the Model Penal Code's negligence or knowledge states of mind) including a variety of "should-have-known" examples for misconduct. Intoxication is cited frequently, which has obvious relevance to a university setting: sexual aggressors must be considerate of their object's potential intoxication, and intoxication on the part of the aggressor does not erode their obligations under the policy. (This is consistent with majority-rule, criminal law, state-of-mind jurisprudence.)

Consent is broadly defined, requiring affirmative consent and resolving ambiguities in favor of assuming lack of consent; sexual aggressors bear the burden of clarifying ambiguities as they arise. Consent will not be constructed from prior consent, and silence is not consent. The policy even obliquely references the "no means yes" phenomenon: "A verbal 'no,' even if it may sound indecisive or insincere, constitutes lack of consent."

The Policy: Additional Procedures and Resources

But the policy doesn't stop there! After defining sexual misconduct, the policy continues further, including much of the information found on the website and more, organized under the headers:

  • Reporting Obligations for Faculty and Staff,
  • Confidentiality,
  • Procedure for Filing Complaints,
  • Sanctions for Violations of this Policy,
  • Administrative Action,
  • Other Reporting Options,
  • Support Resources, and
  • Retaliation Prohibited.

I briefly discuss some of the key clarifications below.

  1. Mandatory Reporting & Confidentiality

All staff and faculty (with a few statutory exceptions, including the ministry and sexual assault liaisons) are MANDATORY REPORTERS. This means that they are legally obligated to report any first-hand or second-hand knowledge of violations of this code to the Title IX Coordinator—the nonconfidential statutorily created position charged with ensuring Title IX compliance, including receiving and responding to formal GU claims involving sexual misconduct. This clarification is important, because an informal survey conducted last year revealed that Law Center faculty were unclear on whether or not they were mandatory reporters.

This also means that students should carefully consider who they reveal information to, because a seemingly private conversation with a faculty-mentor can obligate the faculty member to make a formal report, regardless of the student's wishes. As a result, all students are heavily encouraged to speak with Laura Cutway or Jen Schweer, the confidential sexual assault liaisons, or another person otherwise protected by confidentiality, before deciding whether to make a formal report (thereby losing confidentiality). Note that CAPS's, the on-campus mental health providers, confidentiality may or may not protect the student; it is of a different nature and scope.

2. Jurisdiction/scope

The new policy states clearly and in multiple places that the GU policy applies to members of the community regardless of their physical location or the location of an attack. The policy also extends to contractors and third parties conducting official business with GU. This, along with the explanation of sanctions, reflects an understanding that students, staff, and faculty are capable of being both victims and aggressors.

Conclusion

All in all, the new policy is a remarkable and comprehensive reiteration of the pre-existing policy, explicitly expanding the scope of actions and persons subject to GU regulation. It includes critical information for victims and provides clear deterrent mechanisms for potential aggressors. The policy's success will hinge on implementation, but the detailed definitions should, at a minimum, bring an added level of clarity and consistency to the treatment of claims brought within the GU community.

If so much information is old, why is the website a big deal?

Clarity and transparency in definitions of misconduct, procedures for reporting or getting help, and confidentiality limitations are critical in creating a community that is capable of responding to instances and patterns of misconduct. It is incredibly significant that the website explicitly lists a variety of interim measures available to both students and staff who report victimization, and provides victims a variety of reporting options, including the option to not report.

Victims of sexual violence are often confused, terrified, and isolated; frequently, victims feel as if they have extremely limited options and no one to turn to for help; in an informal survey that AASV conducted last year, dozens of students on the law campus did not know who to go to for help if they were sexually assaulted. Even nonprofit victims-advocacy organizations can feel intimidating when victims aren't sure what they would be getting themselves into by seeking services or reporting an attack.

Whether to report has incredible ramifications to victims and is a very difficult decision. Often, victims are seeking to reclaim some kind of normalcy and regain a feeling of control over themselves and their lives. The process of deciding whether to report can play a huge role in the victim's psychological recovery. Although it may seem counter-intuitive, it can be devastating for a victim to confide in a mentor, expecting confidentiality, and have that mentor file a complaint on their behalf—as most of the GU staff and faculty are legally obligated to do.

The website and the policy make clear that staff and faculty are mandatory reporters and that victims seeking assistance in understanding their options should speak with a confidential liaison, like Laura Cutway, the Law Center's Sexual Assault and Relationship Violence Liaison. The website also provides a number of D.C. community resources, in case students want second opinions or need psychological distance from campus.

It is also significant that the website explains what interim accommodations might be afforded to victims of sexual violence: victims are often confused and disorganized or lack an understanding of their options in the immediate and intermediate wake of their traumatization. Having potential mitigating solutions explicitly laid out can help victims begin to picture what their lives will look like as they move forward and creates the impression of a receptive and open GU administration. Victims are more likely to seek out services through the Sexual Assault Relationship Violence Liaison or the Dean of Students when they can identify specific goals or outcomes that might benefit them.

Finally, the frequent references to federal statute and D.C. code provide a legal backdrop and serve as a reminder to victims that reporting through GU is only one option, and that GU as an institution is bound by a certain legal standards, not just its individual community members. Members of the GU community are empowered to bring actions against GU should GU fail to live up to its self-imposed and externally imposed regulations.

I'm still confused. What's the process for filing a complaint? How does this look to a victim?

0. Consult with non-GU personnel. Ex.: D.C. Rape Crisis Center or a private psychologist.

1. Meet with Laura Cutway or Jen Schweer to learn about the options, procedures, and ramifications for filing a formal complaint within GU. Learn about alternatives, including filing a report with the D.C. Metropolitan Police or a civil complaint. Discuss the benefits and drawbacks of choosing to file or not file a complaint in each system. (Complaints can be pursued in all systems simultaneously.)

2. File a complaint about sexual misconduct.

a. Within GU:

  • Meet with the GU Title IX Coordinator or with one of the campus-specific Deputy Title IX Coordinators. Dean Mitchell Bailin is the Deputy Title IX Coordinator for the law campus.
  • If the victim is not satisfied with the Deputy Title IX Coordinator's response, the student can continue over his head to the GU Title IX Coordinator, Rosemary Kilkenny.
  • At any time, the student may also file a complaint through the Georgetown Office of Institutional Diversity, Equity and Affirmative Action (IDEAA).

b. At any time, the student can make a police report in order to initiate criminal charges or bring civil charges against the accused.

4. File a complaint with the Office of Civil Rights against GU for failure to comply with Title IX.

High five, GU!

I am excited by the attention being devoted to campus sexual misconduct reform, and I hope to see the GU administration continue to make strides in educating faculty and students about the severity and pervasiveness of campus sexual assault. The new policy definitions are an excellent starting point, but the ultimate success of the reform will rely on implementation measures, including faculty and student education. I hope the Law Campus will engage students in a dialogue to determine how the new policy can best be implemented to address students' real, ongoing needs.