Defining What Happened: Clarifying College Sexual Misconduct Policies

Aug 22nd, 1970

Alexandra Hoskins, Esq. College Policy Project Staff Attorney In 2015, the General Assembly passed HB 571 and the governor subsequently signed it into law. The law is designed to improve college response to sexual violence. Its provisions include mandating increased collaboration between schools and community partners, requiring schools to gather data on student perception of sexual violence on campus, and fostering college accountability through the required publication of biannual reports. In order to assist schools with meeting the requirements of the law, the Maryland Coalition Against Sexual Assault hired me to serve as the College Policy Project Staff Attorney. I work full-time with Maryland’s colleges and rape crisis centers to facilitate formal agreements (memoranda of understanding) between these organizations. The goal of these agreements is to increase survivor access to services unique to the rape crisis centers and to improve collaboration between schools and their local rape crisis centers. I also facilitate agreements between campus law enforcement and security and local law enforcement agencies. These agreements are designed to clearly state when an investigation of a campus sexual assault will be turned over to local law enforcement and to improve communication and coordination between campus and local law enforcement agencies. MCASA also conducts trainings and provides technical assistance to help improve college response to sexual assault. At the request of schools, crisis centers, law enforcement, and others, MCASA prepares and conducts trainings on the legal issues and investigative practices unique to sexual assault on college campuses, as well as on best practices for sexual assault prevention on college campuses. In beginning any new project, it is important to identify the scope of the issue and to define the key terms. In this case: How many Maryland college students are sexually assaulted each year, and what does it mean to be sexually assaulted on a college campus? Nationally, studies have shown that approximately 20% of women and 6.1% of men are the victims of a completed or attempted sexual assault during college.[1] Maryland colleges and universities enrolled 161,570 full-time undergraduate students in the fall of 2013, 54% of whom were women.[2] Based on these enrollment numbers and the overall incidence of sexual assault on college campuses, it would be expected that approximately 4,365 undergraduate women and 1,133 undergraduate men in Maryland would experience an attempted or completed sexual assault during a given year. But what, exactly, is sexual assault? The Maryland Education Article requires colleges and universities in Maryland to have written policies on sexual assault but does not define sexual assault for the schools. Instead, each school is left to determine their own definitions of sexual assault and/or sexual misconduct. MCASA uses the term “sexual assault” as an umbrella term to encompass a number of nonconsensual sexual acts, including rape, unwanted touching or groping, sexual harassment, and sexually obscene communications. The Maryland Criminal Code defines rape as vaginal intercourse by force or threat of force without consent or when the victim is physically or mentally incapacitated.[3] The Criminal Code then breaks down sexual offenses by the type of activity engaged in – sexual acts and sexual contact. A sexual act under the Criminal Code includes analingus, cunnilingus, fellatio, anal intercourse, or any penetration by a body part or object for sexual arousal or gratification.[4] Sexual contact is defined by the Criminal Code as intentional touching of the victim or actor’s genital, anal, or other intimate body part for sexual arousal or gratification.[5] A review of the sexual assault and misconduct policies of various higher education institutions in Maryland reveals that the schools vary greatly in how they define sexual assault. At least one school has a policy that does not define sexual assault at all, but merely states that sexual assault is prohibited. Another school prohibits sexual harassment, and states that the school follows the definition of sexual harassment promulgated by the Department of Education’s Office of Civil Rights. The school does not, however, provide students with any further details regarding what conduct would constitute sexual harassment. Other schools provide students, faculty, and staff with very detailed definitions of sexual assault. The University System of Maryland, for example, provides for two different definitions of sexual assault – Sexual Assault I is defined as nonconsensual sexual intercourse involving oral, anal, or vaginal penetration, and Sexual Assault II is defined as attempted intercourse, intentional touching of intimate body parts, or disrobing or exposure of another without consent.[6] It is important for schools to be able to define sexual assault in a way that meets their students’ needs and accurately reflects the concerns of the campus. Clear, concise policies are needed to educate students about the boundaries of ethical conduct and to prevent violence attributable to ignorance and misperception. In today’s world, many college students look to their higher education institution to help them navigate and understand what it means to engage in healthy sexual activity. Clear policies and definitions regarding sexual assault can help students put their experiences in perspective, and can convey what behaviors are not acceptable and will not be tolerated on a college campus or in society at large. Moreover, a vague or unclear policy can leave a school vulnerable to lawsuit. A student disciplined for violating a vague or unclear policy may be able to successfully sue their institution for failure to provide adequate notice of what conduct is prohibited.[7] Sexual assault on college campuses is a very real problem, and MCASA is committed to helping schools provide survivor-centered responses to reports of sexual violence. A clear definition of sexual assault on campus provides a strong foundation upon which schools can build, while community partnerships and agreements with local law enforcement ensure that survivors are receiving necessary resources. I look  forward to working with schools, crisis centers, law enforcement, and others to improve the response to campus sexual assault in Maryland. I can be reached at [email protected].
[1] Christopher P. Krebs et al., The Campus Sexual Assault (CSA) Study (2007). [2] Maryland Higher Education Commission, Trends in Enrollment by Race and Gender Maryland Higher Education Institutions 2004-2013 (May 2014). [3] MD Code, Criminal Law, §§ 3-303, 304. [4] MD Code, Criminal Law, § 3-301(e). [5] MD Code, Criminal Law, § 3-301(f).0 [6] Board of Regents, University System of Maryland Bylaws, Policies and Procedures, Policy on Sexual Misconduct, IV-1.60 (June 19, 2015), available at http://www.usmd.edu/regents/bylaws/SectionVI. [7] See, e.g., Justin Neidig, Sex, Booze, and Clarity: Defining Sexual Assault on a College Campus, 16 Wm. & Mary J. Women & L. 179 (2009), http://scholarship.law.wm.edu/wmjowl/vol16/iss1/7.
  This article appeared in the Summer 2015 Issue of Frontline.

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