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Education or expulsion: KU's case-by-case process for ruling on, disciplining sexual misconduct

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SanctionsData

Shane McCreery works with the Office of Institutional Opportunity and Access at the University. He plays a role in the sanctioning process involving sexual harassment and misconduct.

Editor’s Note: This story is the third in the Kansan’s series on sexual assault at the University in conjunction with Sexual Assault Awareness Month. Every Monday in April, there will be a new story on the topic.

When someone is accused of violating the University’s sexual misconduct or sexual harassment policies and are subsequently reported to the Office of Institutional Opportunity and Access, a process is launched to determine the facts of the situation and to issue sanctions, if evidence suggests a finding of guilt.

In 2016, three people were found in violation of the University’s sexual misconduct policies and six in violation of sexual harassment, according to data obtained by the Kansan.

Sexual misconduct is the "large umbrella term” that “includes a wide variety of behavior,” according to Shane McCreery, director of IOA and Title IX coordinator for the University. Sexual harassment falls under that umbrella and is defined as any unwanted “physical contact, advances, and comments ... based on sex or gender stereotypes” that create “an intimidating, hostile or offensive working or educational environment,” according to the University’s policy library.

Further, sexual violence falls under sexual harassment and is defined as “any physical act which is sexual in nature that is committed by force or without the full and informed consent of all persons involved.”

IOA’s role in the process is to determine the facts of the case and whether the evidence suggests a person has violated University policy. If IOA finds enough evidence, the case is passed onto Student Affairs.

Student Affairs conducts either an administrative process or a hearing process and then decides to either uphold, modify or reject the recommended sanctions made by IOA. If Student Affairs upholds or modifies the recommendations of IOA, the vice provost of Student Affairs conducts a final review of the recommendations before issuing the sanctions. Individuals who receive sanctions can face a variety of consequences and obligations.


Office of Institutional Opportunity and Access

IOA receives reports of alleged violations of the University’s sexual misconduct and sexual harassment policies in three ways: third-party mandatory reporters, direct party contacts or walk-ins. All University employees are mandatory reporters, except for professional or pastoral counselors, ombuds, and the campus assistance, resource and education (CARE) coordinator. Direct party contact refers to when a person reports to IOA, via email or phone, that they were sexually harassed or assaulted.

Both parties may seek assistance from a parent, attorney, friend or any other person during the process, according to McCreery. As CARE coordinator, Evans will often attend meetings and IOA interviews with complainants to act as an advocate.

“I really get to support students and believe them and show up in whatever way they need me,” Evans said. “Sometimes that’s getting them a drink of water, or making sure they’ve had lunch.”

McCreery said he wants the complainant, the person who identifies as a victim, to control the process if they so choose to meet with IOA after a report is made.

“They have agency over the entire process,” McCreery said.

Complainants may choose to share their story without pursuing action, or they may file a formal complaint. In the latter case, IOA begins its investigation.

“If they file a formal complaint, they’re interviewed, they identify witnesses, we will interview the witnesses,” McCreery said. “We only interview the witnesses that we need to make a factual conclusion.”

There are, however, two instances where IOA investigates the situation regardless of whether a formal complaint is filed: when the respondent, the person accused of violating University policy, has been accused of similar behavior either concurrently or in the past, or when the respondent may be a safety threat.

“There are two circumstances in which I will choose to independently investigate something ... If the party has engaged in other acts or was on our radar previously for similar behavior,” McCreery said. “Let’s say, three women come forward and say that this student has stalked them or something like that. Or if I believe that the student or faculty or staff member is a danger to others or to themselves.”

Once the complainant and the witnesses have been interviewed by IOA, the respondent is notified by IOA that they have been accused of violating University policy.

“The respondent is given the exact same process and information,” McCreery said. “It’s the same resources, same help, same everything because it can be very traumatizing to be accused of this as well.”

The respondent then has a chance to give their account of the events and offer up more witnesses.

“They come back they tell their story, we interview witnesses, gather any evidence, which is most often text messages, emails, things of that nature,” McCreery said.

When all of the evidence has been gathered and all of the witnesses have been interviewed, IOA writes up a summary describing its findings and sends the letter to both the complainant and respondent. If the evidence and accounts differ too greatly, IOA will not make a disciplinary recommendation. Provided there is enough evidence, McCreery said IOA will look at other similar situations to ensure consistency with the recommended sanctions.

“We also want input from the reporting party, again as part of that empowerment,” McCreery said. “You know, what would make you feel comfortable? What is an appropriate sanction? Sometimes the party is like, ‘Listen, I don’t want the person thrown out of school, but I don’t want to be in a class with them. I don’t want them to contact me again.’”

This input guides, but does not dictate, the disciplinary recommendations made to Student Affairs, McCreery said. In the 18 months that he has served as director of IOA at the University, McCreery said Student Affairs has not rejected any of IOA’s recommendations, although they have modified some.

“We’ve had a situation where a student is going to be on disciplinary probation for two years, they’ve reduced it to one,” McCreery said. “We’ve had a recommendation where ... I recommended a three-year ban from campus. I did not want the student returning to KU while the reporting party was still a student. The hearing panel came back with a 10-year ban.”

Once IOA has come to a conclusion, it sends an administrative report to Student Affairs.


Student Affairs

Lance Watson, director of Student Conduct and Community Standards in the Student Affairs office, said he reviews the administrative report from IOA completely and asks IOA for clarification, when necessary. The report details who was interviewed, what IOA concluded and what sanctions are recommended, if there is a finding of responsibility. Watson said if he sees substantial evidence suggesting that there could be a violation, he will reach out to the complainant to gather additional information.

“I want to make sure I give the complainant enough space that if they have other things they’d like to share or other thoughts around sanctions, things like that, that we give them plenty of space to share that information with us,” Watson said.

If the recommended sanctions do not involve suspension or expulsion, and the complainant does not wish for the respondent to be removed from the University, Student Affairs launches an administrative process.

“I allow them to review the report,” Watson said. “I allow them to share all their thoughts on it and the findings. And then I make a determination of whether it’s a violation of the code and in turn what are the appropriate sanctions.”

Examples of sanctions that do not involve separation from the University include alcohol education, if alcohol was involved, sexual misconduct prevention training and disciplinary probation.

Last year there were 25 reports of sexual assault on campus. Currently the University doesn't report the time, location and process of sexual assault complaints, but the release of the information to the public would show more transparency at KU.

Watson said there are a number of factors that go into determining sanctions and whether to modify IOA’s recommendations.

“Usually when we think about sanctioning, what we think about is education,” Watson said. “We think about what’s going to help a student grow from that experience, and we also hope students walk away understanding that being at KU is a big deal. There are a lots of folks that would love to be at a university, but can’t be. And finally, we don’t want to have them come back. We don’t want to have future behavior occur.”

If the recommended sanctions, by the complainant or IOA, involve suspension (separation from the university for up to two years), or expulsion (separation from the university for two or more years), Student Affairs will conduct a formal hearing process.

The hearing panel consists of three people. Two of the panel members are faculty or staff, and the remaining panel member is always a student, Watson said.

“Within that formal hearing process, I effectively present information on behalf of the University,” Watson said. “The complainant can be there as a co-complainant, or they can share their information, or they can come in as a witness and speak to it and then leave, or they can choose not to participate at all.”

After Watson details the reasons for recommending a suspension or expulsion to the hearing panel, the respondent presents their case to the panel. The hearing panel then details its findings and recommendations for Tammara Durham, the vice provost for Student Affairs, who has the final say on upholding, modifying or rejecting the sanctions.

Durham said she rarely modifies the recommendations from the panel, but when she does, it is usually to specify definitions or sanctions within the recommendation.

“Sometimes I knew what they meant, but they were speaking university lingo, and I’ll say, ‘I’m going to be more specific here and say here’s what this means,’” Durham said. “So the specificity could just be defining terms.”

Once Durham has conducted the review, she will send a letter to the respondent and the complainant explaining Student Affair’s conclusion.


Sanctions

Individuals who are found in violation of sexual misconduct or sexual harassment policies face a variety of sanctions from training and educational sessions to removal from the University.

Common sanctions for such violations are preventative training sessions conducted by the Sexual Assault Prevention and Education Center. These sessions last six weeks, and each session is approximately 75 minutes long.

“It is a support-group style with other students who are found responsible,” said Jen Brockman, director of SAPEC. “We do this on evidence-based and best practice recommendations. Having individuals who have caused harm to others work in a group together actually provides more productive learning environments and allows individuals to reflect on their behaviors more fully.”

Of the three sexual misconduct violations in 2016, one individual was required to complete an education program through SAPEC. The other two individuals were removed from the University. Of the six sexual harassment violations, four individuals were required to complete such programs and one individual was removed from the University; the remaining individual only had to serve disciplinary probation.

Individuals who miss a group session are required to start the six week training over. Individuals who do not complete assignments given for the training, or who have displayed behavioral issues, may also be required to start over.

In week one, participants set goals and conduct self-assessments. In week two, participants learn about the role of toxic masculinity and entitlement in the perpetration of sexual misconduct. In week three, participants disclose why they were required to take the training program and look into patterns in their behavior. In week four, participants focus on denial and are challenged to eliminate language that justifies their actions. In week five, participants talk about what desires led them to their actions and focus on healthy ways to meet those desires while avoiding harm. In week six, participants conduct a final assessment, revisit their goals and create a written action plan to help them achieve those goals.

Additionally, some individuals have been required to undergo alcohol education conducted through the Health Education Resource Office at Watkins Health Services. There are two different classes for alcohol education sanctions based on the severity of the alcohol use. Individuals found in violation of sexual misconduct or sexual harassment policies who receive these sanctions are required to take the courses one-on-one.

In the alcohol education program reserved for less severe usage, individuals are asked to consider why they use alcohol and set goals that allow them to control their alcohol consumption and drink responsibly, according to Jenny McKee, the program manager for HERO. The education program for more significant alcohol issues is broken down into three sessions. The first two sessions look at family history and establishing goals. The final session is a maintenance check thirty days after the second session.

While alcohol may play a role in sexual misconduct or sexual harassment violations, McKee said alcohol does not cause these violations.

“Alcohol use does not cause sexual assault,” McKee said. “The only thing that can cause a sexual assault, rape, sexual harassment is being in the presence of someone who perpetrates those acts of violence.”

One individual who was found in violation of sexual harassment policies in 2016 was required to take the more significant alcohol education course, and one individual who was found in violation of sexual misconduct was required to take the education for less severe usage.

Removal from the University typically requires more severe violations of the sexual misconduct or sexual harassment policies, including being found in violation for similar behavior multiple times or for nonconsensual sexual activity, according to McCreery.

“Often when we’re talking about a nonconsensual sex act, which would be sexual violence, we would recommend separation from the institution,” McCreery said. “You have a situation where somebody engaged in relationship violence and threatened the person, broke into their apartment, engaged in other acts, either criminal acts or acts of violence, that would lead us to believe this person is a threat to the University community or a threat to this individual.”

Of the three sexual misconduct violations in 2016, two students were removed from the University. One was expelled for three years, while the second was suspended for a semester. Of the six sexual harassment violations, one individual was expelled for five years.