New UH Violence Policy Could Backfire
Sorry, but I’m uncomfortable with the proposed new University of Hawaii policy on sexual assault, domestic violence, dating violence and stalking — the one so many want under the Violence Against Women Act and Title IX of the U.S. Code.
It makes its administrators act as forensic police and investigative psychologists in the complex matters of sexual encounters on all campuses —
not just between students or faculty members, but also for “volunteers, visiting interns, guests, patrons, independent contractors, or clients of the University.”
It won’t be the police working under color of law making this difficult determination.
UH staffers are not detectives. Yet the policy says, “Each campus will investigate complaints in a manner that is equitable and reasonably prompt. Where appropriate, the campus will take prompt and effective steps including disciplinary sanctions.”
Sexual harassment? Sure. It’s well-qualified there. Police, judge and jury on sexual acts? Read on.
“University proceedings need not await the disposition of any related criminal investigation or prosecution. The University has the right to proceed with an administrative investigation at any time.”
That should ring alarm bells everywhere because it gives UH “investigators” the power to determine if there was consent for the sexual act.
“A knowing and voluntary agreement to engage in mutually agreed sexual activity (including pictures/video). For the purposes of this section, affirmative consent means affirmative, conscious and voluntary agreement by both parties to engage in sexual activity. Consent must be ongoing throughout sexual activity and can be withdrawn at any time.”
It won’t be the police working under color of law making this difficult determination. It will be somebody appointed by a campus chancellor.
It should be strictly the enforcers of the state penal code (police, sheriffs) who determine if there was a “yes” or a “no.”
This UH policy could come back and smack the school right in the face and result in very messy and very expensive lawsuits alleging that the school doesn’t have forensic experience. It doesn’t.
The rest of the policy is OK, requiring education in the manner of proper behavior, victim counseling and providing for eventual disciplinary action. But the latter should be undertaken only after a conviction under the state penal code.
Reporting criminal sexual behavior UH knows of is a must. Counseling is a must. Discipline for convicted offenders is a must. I emphasize convicted.
What’s a “yes”: Determination belongs to trained police, not some person designated as campus “investigator.”
Counseling a complainant and offering protection are good and required. So is warning everybody of the consequences of bad sexual behavior.
But it’s a dangerous step to push campuses too far in the direction of presumption that every complaint of “I said no” might be valid on its face. It would be unjust and unlawful to presume guilt and deal out interim punishment.
It should suffice for the school to say its policy is, “We will not tolerate or continue to educate anyone convicted of a sexual offense on university property or involving a university student, faculty member or administrator.”