December 19, 2014

Dr. Teresa A. Sullivan, President

University of Virginia Office of the President

P.O. Box 400224

Charlottesville, VA 22904-4224

Dear President Sullivan,

I am an attorney in private practice. I and the attorneys signing this letter all have considerable and specific experience in cases that involve students who have been accused of a campus sexual assault. While we strongly believe in preventing and punishing sexual assault in any setting, we are concerned that the University’s Proposed Student Sexual Misconduct Policy (“Policy”) is both vastly over inclusive in attempting to define prohibited conduct and ill equipped to guarantee a procedure for resolving allegations that is fair and impartial. The recent events surrounding the unraveling of a Rolling Stone report of a gang rape allegation on your campus should be a vital reminder that due process for accused students and avoiding the imposition of penalties as knee-jerk reactions are vitally important for an effective and well functioning sexual misconduct policy.

I will begin by highlighting several positive aspects of the Policy that UVA should keep and potentially expand. The Policy properly employs a presumption that an accused student is not responsible (p.2). The Policy also wisely protects both complainants and respondents from retaliation for their participation in the grievance process,1 and appears to allow respondents to pursue Interim Remedial Measures (p. 34). While it is also very encouraging that the University appears to allude to the fact that both complainants and respondents can be provided with a “trained advisor” (p. 25), the Policy needs clarification on the point.2

Unfortunately, however, the Policy also has significant flaws and shortcomings. I have attempted to prioritize the most egregious examples in this letter, but there are many more.

The single-most troubling thing about the Policy is that the President can amend it at any time, seemingly in the middle of a specific case with retroactive effect (p. 37). If this Policy is to

provide meaningful safeguards and guidance for UVA students, the University cannot be allowed to alter it without a reasonable period of notice to the student body. The current climate around sexual assault on college campuses is hard enough on students without the prospect of a constantly morphing set of rules, regulations and procedures.

Relatedly, the Policy vests UVA officials with the power to impose a number of significant penalties on a respondent and/or the entire student body without specifying any factors to guide their discretion. The Office of the Dean of Students, for example, can impose Interim Remedial Measures barring a respondent from a dorm or a class without any specification as to when doing so is appropriate (p. 17-18). The SMB Hearing Committee, similarly, is not constrained by any kind of sentencing guidelines to ensure uniformity of punishments across cases, and the Policy appears to unduly limit sentencing by foreclosing a number of potential “middle ground” sentences such as loss of a partial university privilege (p. 30). There are also no criteria specified for when and why the allegations of one particular case might warrant what amounts to a sanction for the entire university community (p. 31).

A closely-related issue to the problem of power without guidance is the utter lack of meaningful appellate rights. Neither a complainant nor a respondent can appeal the implementation or non-imposition of Interim Remedial Measures and/or interim sanctions such

as interim suspension (p. 17, 21, 23); the Evaluation Panel’s determination that a complainant’s request for confidentiality cannot be honored (p. 22); the Dean’s denial of the complainant’s

request for Voluntary Informal Resolution (p. 24-25); the Dean’s imposition of a “hold” on a respondent’s transcript (p. 25); the Standing Review Committee’s decision regarding responsibility, even if that Committee violates its own rules by engaging in an investigation or hearing (p. 28-29); or the SMB Hearing Panel’s imposition of a sanction (p. 31), even if the SMB Hearing Panel violates its own rules as by revisiting the question of responsibility for the underlying conduct (p. 29). Furthermore, the fact that appeals from an investigator’s report are cabined to five business days (p. 28) means the University of Virginia will likely find itself

facing a Caleb Warner problem3 in the event new evidence, such as a police report issued for the complainant for filing a false rape claim, arises later. Even the limited appeal rights the Policy

does provide are insufficient: while students can appeal the findings of the Investigator’s Report to the Standing Review Committee (p. 28-29), students are not allowed to challenge anyone on

that Committee for bias4 and there are no meaningful procedures governing their review of the Investigator Report.

The Policy also violates federal standards because it provides a number of protections to complainants that it denies to respondents. For example, only complainants are provided with

amnesty for consumption of drugs or alcohol that occurred during alleged sexual misconduct (p. 23). The Policy similarly requires that a respondent’s name appear in a Final Outcome Letter, while a complainant’s name does not (p. 32),5 and the Dean of Students prepares a complaint for the complainant (p. 24) while no one from the University appears to prepare the respondent’s reply. The University’s Primary Prevention Programs also include “an organization of students trained to advocate for survivors,” without providing a similar quasi-public defender service for respondents (p. 54). Most troublingly, the Policy absolves complainants of any responsibility for sexual conduct while incapacitated while holding respondents to the standard of a sober individual despite his or her incapacitation (p. 7-8); in cases in which two students are both

incapacitated and each initiates sexual misconduct against the other, whichever student first files charges against the other will become the “complainant” and therefore not be found responsible.6 The Policy should provide equal rights and protections to both parties.

The Policy’s single investigator model also does not provide due process.7 Among the more egregious problems with UVA’s Policy:

• There is no requirement that the complainant or the investigator disclose exculpatory material to the accused, or even provide the full text of all material the investigator relied upon in making the report;

• There are no procedural or evidentiary rules governing what is admissible during an investigation, other than what the investigator deems “relevant” in his or her sole discretion (p. 27). Most problematically, neither the complainant nor the respondent

has any mechanism for challenging the investigator’s reliance on the testimony of a biased expert (p. 27). The lack of a parallel to Federal Rule 408 immunizing statements students make to each other in Voluntary Formal Resolution (p. 33) will also significantly chill that process’s effectiveness.

• At no point during the process is the respondent ever allowed to cross-examine the complainant regarding inconsistencies or motivations to lie, even indirectly;

• The rules do not guarantee the accused a right to remain silent without a negative inference drawn in cases where parallel criminal charges are pending. The City University of New York has guaranteed its students that right since 1970.

The Policy’s definition of “affirmative consent” is further unworkable. Even the Policy itself cannot decide if consent must be given prior to or contemporaneously with the sexual activity in question.9 The Policy does not define the phrase “specific sexual activity”; its statement that a complainant can withdraw consent “at any time” (p. 7) ignores situations where a respondent would be physically unable to stop, as when the respondent is mid-climax; and the Policy does not sufficiently clarify when a subjective standard may be used in determining whether consent existed (p. 9).10

A number of definitions in the Policy are unclear and vague,11 to the point where UVA students cannot reasonably be expected to know what is prohibited. For example:

• “Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another” (p. 19). The term is not limited to the examples provided, and the words “non-consensual or abusive sexual advantage” do not have defined meanings. The definition of sexual exploitation also appears to conflict with the

definition of affirmative consent, as the Policy implies that some undefined acts that result in “abusive sexual advantage” are violations even if consensual.

• Under “Sexual Exploitation,” it is an offense to “recklessly” expose someone to a “significant risk” of a sexually transmitted infection. What are the definitions of recklessly and significant risk? Are all UVA students now required to obtain regular STD screenings, to avoid the chance of passing infections? If so, how regularly must

they be? This definition, and others like it, will force the University to inject itself into the sexual lives of its students and vitiate their rights to privacy and sexual autonomy.

• The definition of “coercion,” for purposes of eviscerating consent (p. 7), does not clarify what an “unreasonable amount of pressure” actually is. This statement purports to criminalize a voluntary meeting-of-the-minds consensual sexual encounter in a manner that is unfair and arbitrary, and it should be removed from the Policy.

A number of definitions in the Policy are also grossly overbroad. For example:

• In the context of evaluating whether Force was employed to obtain consent, the Policy defines “Threats” as “any words or actions that would compel a reasonable person to engage in sexual activity that he or she would not ordinarily have engaged in.” (p. 7). It is difficult to imagine anything that could not conceivably meet this

minimal threshold: buying someone a drink, giving them a compliment, or stating in good faith that a sexual encounter will not ruin a friendship are all things that could compel sexual activity that might not otherwise have occurred. Yet none of those

things are threats. This definition should be removed and replaced with language that reflects the conventional legal understanding of what a threat is.12

Despite the Policy’s stated commitment to respecting the First Amendment (p. 2) – as UVA must, since it is a public school – parts of the Policy allow UVA to punish protected speech:

• The Policy states that one factor in deciding if a “hostile environment” exists for purposes of sexual harassment is “Whether the conduct is protected speech under the First Amendment to the U.S. Constitution” (p. 10). This falsely implies that other, vague factors (such as whether the conduct was “humiliating”) can outweigh the First Amendment’s protection. Protected speech is not punishable, and the Policy should state explicitly that First Amendment activity cannot form the basis of a hostile environment sexual harassment claim.

• The Policy defines “Stalking” to include a course of conduct that would cause a reasonable person to suffer substantial emotional distress (p. 11). As the Supreme Court has noted, it is unconstitutional to punish protected speech just because it

induces emotional distress in a reasonable person.13 Under this Policy, two or more indirect communications with a person could be a punishable offense even if they constitute First Amendment expression.

Finally, the Policy fails to make any prohibition of, or punishment for, maliciously false complaints made in bad faith. This is particularly troubling because the ability of a complainant

to pursue direct Financial Restitution14 against an accused student (p. 30), along with the wide range of Interim Remedial Measures a complainant can receive while an action is pending such

as the alteration of class schedules, the extension of assignment deadlines and permanent reassignment of University residence halls (p. 17), could easily provide incentives for abuse.

In conclusion, UVA must revisit its policies and procedures, both as outlined above and in other areas, to ensure they provide both parties to a sexual grievance with respect, equal treatment, and sufficient rights and protections.

Sincerely yours,

Patricia M. Hamill, Esquire

Conrad O’Brien, P.C.

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phamill@conradobrien.com

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1 The Policy’s discussion of retaliation at p. 23 should be clarified to explicitly include respondents, as

respondents are included in the retaliation discussion at p. 11.

2 Given the length and complexity of UVA’s Policy, and the fact that the University General Counsel is involved

in reviewing the investigator’s report (p. 28), advisors for both students must be attorneys. The respondent’s

advisor must also be someone from outside the Dean of Student’s office, given that the Dean prepares all

complaints (p. 24), including in some cases against the wishes of the complainant (p. 25).

3 Until faced with national media scrutiny, see Harvey Silverglate, “Yes Means Yes – Except on Campus,” Wall St. Journal, July 15, 2011, http://www.wsj.com/articles/SB10001424052702303678704576440014119968294, the University of North Dakota refused to reopen Mr. Warner’s case despite a subsequent issuance of an arrest

warrant for his accuser for filing a false police report concerning the exact same incident. See http://www.thefire.org/victory-for-due-process-student-punished-for-alleged-sexual-assault-cleared-byuniversity-of-north-dakota-accuser-still-wanted-for-lying-to-police-2/

4 Compare p. 26 n. 24 (allowing students to challenge the initial investigator for bias) and p. 29 (allowing

students to challenge members of the SMB Hearing Panel in sanctions cases).

5 The Policy appears to imply at p. 28 that a Final Outcome Letter will be issued in all cases, including those in which the respondent is found not responsible. It seems especially unfair to only require the respondent’s name to appear in the Final Outcome Letter in such a case.

6 Professor Halley expands on this point in a memorandum she prepared addressing Harvard’s sexual misconduct policy. http://www3.law.harvard.edu/orgs/acs/2014/10/28/professor-janet-halley-on-the-new-harvarduniversity- sexual-harassment-Policy/, P. __.

7 In reviewing Harvard’s Sexual Misconduct Policy, Professor Janet Halley has flagged a number of problems that UVA’s Policy regrettably duplicates. Professor Halley’s in-depth memorandum on the Harvard Policy is available at http://www3.law.harvard.edu/orgs/acs/2014/10/28/professor-janet-halley-on-the-new-harvarduniversity-sexual-harassment-Policy/.

8 https://www.documentcloud.org/documents/1371723-cuny-uss-resolution-support-letter.html ; http://www.capitalnewyork.com/article/cityhall/2014/12/8557607/cuny-trustees-unanimously-approveaffirmative-consent

9 Compare p. 6 (prior to only) with p. 8 (prior to OR contemporaneous with).

10 The affirmative consent standard also appears to prohibit BDSM sexual intercourse, in which all activity is presumptively acceptable unless a partner utters a “safe word.” Whatever the University’s moral judgment of such activity, it has no right to dictate sexual behavior to adult students capable of making their own choices.

11 At least one, Sexual Misconduct (p. 1), also misstates governing law on sex discrimination. In contrast to what the Policy says, not every act described under Sexual Misconduct rises to the level of sex discrimination. See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998) (“A professional football player’s working

environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.”); Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 1358

(M.D. Ga. 2007) (one incident of sexual assault insufficient to establish a Title IX hostile environment).

12 See Virginia v. Black, 538 U.S. 343, 359 (2003) (“‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.)

13 See Snyder v. Phelps, 562 U.S. 443 (2011) (overturning a jury verdict for intentional infliction of emotional distress based on protected speech). The U.S. Department of Education’s Office for Civil Rights specifically noted in its recent final Clery Act regulations that its definition of “stalking,” while it includes the “substantial

emotional distress” element, is not a behavior standard to be enforced on students. Violence Against Women Act, 79 Fed. Reg. 62,752, 62,759 (Oct. 20, 2014) (“This definition serves as the basis for determining whether an institution is in compliance with the Clery Act and does not govern or limit an individual’s speech or

behavior under the First Amendment.”)

14 This is another vague term that needs defining. How is “damage” measured? Is the respondent’s financial means relevant? Does the complainant have any obligation to mitigate damages?