“I Fear I’m a Checkbox”: College and University Victim Advocates’ Perspectives of Campus Rape Reforms

Increasing consequences

Twelve of the 14 participants described the growing realization that inadequate campus responses to sexual assault could result in direct and indirect consequences for colleges and universities. Lawsuits and federal complaints of policy violations could result in monetary fines, undesired attention from regulatory bodies, and directives to remedy the areas of complaint in the form of settlements or voluntary resolution agreements, all of which limit the institution’s autonomy. Indirect consequences included media attention that might shed a negative light on the campus. In addition to the public relations components of any media story, campuses also worried about whether such media would alienate students, parents, alumni, and donors.

Participants described these consequences as not only troubling to their university but also motivating. For example, one participant said, “once there were some liability concerns, for some people that was the motivation, we don’t want the university to look bad” (1.10). A different advocate explained how her campus is concerned about the potential consequences of not adhering to the regulations: “I think people are afraid that if anyone in the university was on notice [about a sexual assault] and didn’t take action that the university can then suffer from financial problems as well as PR issues” (1.08). A third advocate acknowledged the particular role of OCR complaints in being an accountability mechanism that successfully garners the attention of upper level administrators. She stated,

I’m thrilled that OCR is doing so many investigations, and that’s probably a horrible thing to say, but I just feel like I don’t know at this point what else you do to get people who are senior level administrators to care or to get it. (1.13)

These participants suggested that the threat of direct and indirect consequences served as a motivator for compliance, sometimes spurring action that might not otherwise have occurred. However, the threat of consequences also increased fear about the public relations crisis that might result from an OCR investigation or other consequence of policy non-compliance.

Insufficient information

At the same time that universities are becoming increasingly aware of the consequences of not complying, 11 of the participants described how many on their campuses remained confused, conflicted, or unsure about how to interpret and implement the federal regulations. Participants also suggested that there was a dearth of research or other information to help campuses decide what an effective response would look like.

Several participants described a “lack of clarity” (1.05) or “lack of guidance” (1.10) that left their campus struggling to interpret the intent of the regulations. Similarly, advocates described confusion about how the various regulations intersect with one another. For example, one participant remarked,

I just think there’s not a high level of understanding about how Title IX, VAWA, Campus SaVE, and Clery relate to each other, and never mind FERPA and all those other things. I think the federal government, the White House task force, they tried to make these things clearer for people, but I just think that it’s still unclear. (1.13)

Participants suggested that this created a situation in which each campus must individually interpret the law to determine how to comply.

Others expressed a desire to know more about what kinds of responses would be effective, or for the government and regulating bodies to be more involved in sharing best practices with campuses. For example, one participant stated, “I would love for the powers that be to kind of look at some of the programs around the country that are working well, that have a good record with students, that are well respected through the country” (1.05). Another participant remarked that “not a day goes by that someone doesn’t try to sell me something” (1.07), but lamented that all too often, there is little or no data backing up whether the product or service is actually effective. Not having information to sort through the many options left campuses feeling unsure about how to best respond to victims.

Focus on compliance

Against the backdrop of increasing consequences associated with inadequate responses to sexual assault and insufficient information, 11 participants explained how campuses were increasingly fearful of liability. Universities, participants explained, turned their focus toward compliance with the regulations as a means of managing those liability risks. For the advocates interviewed, however, the strong focus on compliance was at times in conflict with what they saw as the victim-centered intent of the regulations.

One participant explained, “obviously we’re in a situation where people are very compliance focused” (1.09). Another concurred, “the focus is really on compliance, that’s the current theme and the current environment” (1.14). Another participant talked about the “pressure” (1.07) on the campus to comply. Suggesting a reason for the compliance climate, another explained that the university is focused on “documenting every step and making sure that each step is by the book so that we could defend against a complaint if one were to arise” (1.03). This participant illustrated how the fear of an OCR complaint fed into a climate focused on documenting compliance as a means of managing liability.

The problem with compliance, explained one participant, is that “compliance isn’t necessarily victim friendly” (1.14). Another participant agreed that the focus of universities was more heavily weighted on “the lens of compliance rather than creating a safe environment and supporting students” (1.04). In other words, campuses adopted a defensive stance to protect against liability risks, rather than an approach focused on creating a climate that protected against liability by supporting victims with compassion and respect.

Shifts in responsibility

Twelve participants explained that with the increased regulatory climate came shifts in both who bore the responsibility and who had the power to shape campus responses to sexual assault. Participants talked about how Title IX coordinators have emerged as important entities in campus sexual assault response decision making. One participant explained how the regulations had “formalized the Title IX office and that person’s role in the community, kind of lifted them up” (1.06). Other participants talked about how an upper level administrator was assigned responsibility for leading the efforts around sexual assault, despite that person lacking background or expertise in the field. Lawyers also, according to participants, had become increasingly central to campus efforts to reform their sexual violence policies and response. One participant explained how the university lawyer is “at the forefront of changing stuff and making sure that we’re in compliance with Title IX, and I think his voice is one that is prioritized on this campus” (1.11). These coordinators, lawyers, and administrators, however, often did not come to the table with a background in sexual assault. As one participant explained, this meant that Title IX coordinators were “kind of catching themselves up to speed right now” (1.02). Often Title IX duties were added to the existing duties of a director of human resources or an office of diversity, sometimes leaving these coordinators without enough time to spend on Title IX or their other job duties. One participant asked,

if you just have the lawyer and the dean, and the president or the chancellor there, who really knows about trauma? And who knows about this work from an empowerment based perspective? And who really understands primary prevention, and community organizing models? Those folks in some places have been shut out of that process. (1.10)

Similarly, one participant lamented that “the people who work the closest with these issues and with the students who are impacted by these issues are not part of the conversation when decisions are being made” (1.04). This participant later connected this dynamic directly to the fears about liability:

when they’re concerned about how they’re going to be perceived by an agency that can have serious consequences for them and is not clear about what the expectations are, then it leaves it to interpretation and those who speak the strongest for compliance are going to get the most credence because that’s what the fear is, that we’re going to be out of compliance. And so I think that we lose the lens of survivors, and I think that when we look at it from compliance and lawyers, we don’t acknowledge that victim advocates have been talking to survivors for years, and years, and years. (1.04)

Certainly there are many Title IX coordinators, administrators, and lawyers who have pre-existing expertise on sexual assault or who engage deeply with the topic as they become involved in the campus response. Almost all of the participants, in fact, talked about their appreciation of the efforts of a particular lawyer, administrator, or Title IX coordinator who helped others on campus see how to be more victim-centered. One spoke of being “astounded” (1.07) by the commitment of the lawyers she worked with and their willingness to listen to what she has to say. What participants questioned was not the qualifications of lawyers and Title IX officers who, of course, bring valuable expertise specific to their duties and training. Rather, participants raised questions about the relative value of various sources of knowledge and expertise, and the campus’ efforts to balance those voices. Participants suggested that the balance of power and influence is tipped in the direction of lawyers and administrators, at the cost of overshadowing voices that brought an expertise that represented years of experience working directly with victims as they navigated campus and community judicial and service systems.

Motivation

The result of these conditions, increasing consequences, lack of clarity, focus on compliance, and shifts in responsibility, was varied. However, all 14 of the participants acknowledged that the current climate of compliance increased motivation for administrators to address sexual assault on campus. However, 10 of these participants also described concerns that those administrators sometimes seemed interested in only achieving minimal compliance, while 11 of the participants also expressed concern that compliance had started to overshadow victim-centered approaches.

One participant described that when a committee was formed to address the Title IX mandates in the DCL, it was

the first time since I had been on the campus that there was a high level group of folks meeting to actually talk about what the response protocol was . . . there had been different committees . . . but we could never get any of the high level administrators to the table so we were really disempowered in that way to make any effective change because we didn’t have the people that made the decisions meeting with us. (1.10)

Some participants talked about how they are deliberately taking advantage of the increased motivation to try to accomplish reforms that would otherwise be ignored. For example, one participant stated,

Thankfully all of these efforts have made us pay more attention and kind of put more of a haste in our movements. We really try to utilize it to push for things that we’ve been wanting to do for a long time . . . we’ve been putting years’ worth of work in and not making any progress. And now it’s suddenly easy, like flipping a switch. Now people are willing to play. (1.09)

All of the participants named changes that had been implemented or were underway as a result of the momentum created in the wake of the DCL, including hiring specialized staff, changes to judicial procedures, and increased prevention programming.

Minimal compliance

Despite the motivation and the improvements that participants described, 10 of the participants described how their institution at times focused narrowly on achieving a minimal level of compliance rather than thinking more broadly about how to translate the reforms holistically on their campus.

One participant acknowledged this diminished focus by explaining that there were “limitations to what the university is willing to do” (1.10). In saying this, she suggested that there continued to be barriers to implementing reforms in the institutional handling of sexual assault. A number of participants referred to the potential for compliance with regulations to turn into a series of checkboxes in which institutions focused narrowly on ticking off the boxes without seeing the bigger picture. One participant explained that “there are people at our institution whose focus is let’s make sure we check those boxes and let’s check those boxes in the easiest most expedient way possible” (1.09), suggesting that the focus is on ensuring compliance with the least effort, rather than looking more broadly at how to improve the campus handling of sexual assault. One participant questioned, “are the things that are being done really effective or are they just enabling schools to check off boxes?” (1.03). She suggests that checking off boxes is a simplified process of assessing do we have this in place or not, without looking to see if the procedures in place are actually accomplishing what they are meant to accomplish. Others went a step further and suggested not only that the university was disinterested in taking a deeper look, but that the efforts in which they have engaged might be lip service. One advocate said, “I hate to say this and I hate to believe it, but I fear I’m a checkbox, you know, so that they can say in a PR piece, well we think violence is important” (1.08).

Another participant described how the committee organized to work on improving campus processes would often return to the written charge for the committee. This usually resulted in the committee deciding they had met the administrator’s demands and did not need to explore further, a process the participant described as “lowering the bar” (1.11). Others described a campus committed to compliance with reporting and investigation but resistant to adopting campus-wide awareness campaigns, suggesting a similar narrow view of compliance.

One participant, however, provided a contrasting picture. She talked about how her university went through a deliberate process of saying

we need to do whatever our community needs to do to make sure our community is in a better place . . . we have to do more than [the mandates] if we’re actually going to see the real change that we want to see on our campus. (1.09)

On her campus, stakeholders were able to see beyond the narrow view of checkboxes and think instead about what changes would make the campus a safer and more respectful environment.

Victim-insensitive decisions

Eleven of the participants also expressed concern that their institutions sometimes made decisions based on compliance even when those decisions could make the process of seeking help more distressing for victims. Participants, as their advocacy role dictates, felt that victims should have control over the decision about whether or not to make a report and what happens with information shared. Administrators and others in the university, however, prioritized the DCL directive that institutions need to investigate any and all reports, despite other sections of the DCL that stressed the importance of honoring a victim’s wishes. As one participant explained, administrators say,

it doesn’t matter what the survivor wants. OCR is telling us we need to investigate, and so we have to investigate. I could say until I was blue in the face, look at all these other things in the letter. I really don’t think the intent of this was to take more power away from survivors, but the lawyers looking at it, people looking at it who didn’t come from a victim-centered place said, this is a liability issue for the university and we must investigate. (1.10)

In this example, we see how campus officials selectively focused on compliance with one aspect of the letter, investigation, at the cost of ignoring other guidance that underlined the importance of allowing victims to retain control over the course of the investigation.

Others spoke of campus procedures that encouraged victims to follow through with reporting, which participants felt sometimes crossed a line into badgering victims. One participant said,

when a student is getting phone calls from four different offices on campus, that’s not really helpful for them . . . it used to work much better. I think it’s just that people are afraid. I really think the Dear Colleague Letter in some places has really shifted the focus from survivor support to concerns of liability. . . . I think everyone is walking a fine line of doing the right thing for survivors and actually infringing on their right to do nothing . . . we are forcing people to do things that they don’t want to do. (1.05)

Another participant explained how an institution proceeding against a victim’s wishes is problematic and not aligned with the victim-centered intent of the regulations:

We have a situation where a student had all power and control taken away from them. As an institution do we want to be doing the exact same thing that their perpetrator just did to them in our quest to provide them with fair and equitable treatment and make sure that they’re getting their rights? But we are just trampling over their rights. (1.02)

This participant even suggested that it is possible that the drive to investigate every report could end up creating a “chilling effect” on reporting, which the DCL explicitly warns against.

Another issue that more than half of the participants found to be a troubling unintended consequence was the inconsistent status of victim advocate confidentiality. Despite assurances by OCR that advocates should be considered confidential resources, many campuses were still treating their victim advocates as responsible employees who were bound to share names and assault details with a Title IX coordinator or other designated representative. Participants described how this changed the nature of their interactions with victims:

I used to be able to just say how can I help you? What do you need today? Now I have to start out with let me tell you [about the limits of my confidentiality] before you start saying anything. . . . It just sets up a very different dynamic. (1.04)

Another participant spoke of the “detrimental” (1.08) effect that not being confidential has on her ability to meet victims’ needs. This participant shared stories of victims who left her office without getting their needs met rather than risk having their privacy compromised. Others described being told that they must gather and report names from anyone who discloses an assault at a public speak-out or other awareness event, regardless of whether the victim disclosed in an attempt to request assistance from the university. Other participants spoke more generally about the responsible employee directive in saying, “we really can’t claim that it’s a victim-centered approach [anymore] knowing that if the student disclosed to a professor that professor is going to go to the Title IX officer” (1.06). This participant echoes the concerns of others who felt the loss of their previous victim-centered role as the institution has turned more toward compliance.

Other victim-insensitive practices described by participants included information sharing, what needs to be documented, and how many people victims need to talk to when pursuing reporting options. Similarly, participants described as insensitive the decision to issue timely warnings to the entire campus for every sexual assault (despite the actual risk for the campus in general), which one participant explained is potentially traumatizing for survivors and another described as potentially violating the victim’s confidentiality or putting her at risk of retaliation.