109A
AMERICAN BAR ASSOCIATION
COMMISSION ON DOMESTIC & SEXUAL VIOLENCE
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
RESOLVED, That the American Bar Association urges the federal government to adopt
legislation and appropriate full funding to support the U.S. Department of Education Office for
Civil Rights, in support of its efforts to enforce Title IX of the Education Amendments of 1972
(20 U.S.C. §1681 et seq.) and other activities designed to promote access to education free from
gender-based violence;
FURTHER RESOLVED, That the American Bar Association urges colleges and universities
handling intimate partner violence, stalking, and sexual assault allegations in campus
administrative hearings to create and maintain fair and just hearing processes that adhere to due
process and sound evidentiary principles;
FURTHER RESOLVED, That the American Bar Association urges colleges and universities to
strictly adhere to the spirit and principles of victim privacy, confidentiality, and autonomy, as
described in Title IX of the Education Amendments of 1972 (20 U.S.C. §1681 et seq.) and the
Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (20 U.S.C.
§1092(f)), and disapproves the use of universal mandated reporting of abuse by campus
employees or students;
FURTHER RESOLVED, That the American Bar Association urges colleges and universities to
develop and maintain working relationships with state and local civil and criminal justice
systems and community-based victim resources (such as rape crisis centers, domestic violence
support groups, crime victim services, or independent counseling services), and to provide
complainants with direct referrals to, but not mandate participation with, these resources;
FURTHER RESOLVED, That the American Bar Association urges colleges and universities to
allow the use of attorneys and legal advocates for complainants and alleged perpetrators at all
stages of the campus hearing process, and urges attorneys to provide such services pro bono;
FURTHER RESOLVED, That the American Bar Association urges law schools to provide pro
bono assistance to complainants and alleged perpetrators in campus administrative hearings and
processes, and to provide assistance to university administration with the creation or revision of
such processes.
109A
REPORT
Introduction
Intimate partner violence, stalking, and sexual assault are rampant on United States campuses.
The most widely used statistic indicates that approximately one out of five women will be
sexually assaulted while attending a college or university.1 Nearly half of female victims (47%)
and more than one-third of male victims (39%) are between 18 and 24 years of age when they
first experience violence by an intimate partner.2 Over 37% of female victims and 27% of male
victims are between 18 and 24 years of age when they first experience stalking victimization.3
While not all college-age victims attend college or university, under Title IX of the Education
Amendments of 1972, colleges and universities have a unique obligation to keep their
communities safe from gender-based violence.4
Outside of college and university campuses, there are two legal approaches for handling genderbased violence: civil or criminal courts. On campuses, a third option is available: the campus
administrative hearing. Though not a legal process, the campus hearing is a quasi-judicial
proceeding because of the nature of the complaint and the ramifications for both the complainant
and the alleged perpetrator. Each campus has its own internal grievance process and array of
punishments and protections if the proceedings result in a finding against the alleged perpetrator.
There are a variety of reasons why a victim of gender-based violence might chose to initiate a
campus administrative hearing, in lieu of, or in addition to, traditional legal proceedings.
Avoiding the disruption, expense, and emotional turmoil of a legal proceeding might be one
reason. Also, campus hearings have the unique advantage of being able to offer campus-specific
remedies that may be more suitable and appealing to the complainant, such as permission to drop
a class or withdraw altogether without penalty, to change dorm rooms or parking spaces, to alter
a class or dining schedule, or even to seek expulsion of an offender.
Campus administrative hearings are recommended and regulated by existing federal civil rights
laws like Title IX; however, campuses may be ill-prepared to address such serious allegations as
rape, stalking or dating violence in administrative proceedings which have traditionally
addressed matters such as academic dishonesty and class pranks. The harshest punishment of
expulsion has significant collateral economic consequences for the alleged perpetrator.
Additionally, the grievance proceeding can re-traumatize the complainant if not conducted in
accordance with established best practices. While colleges and universities continue handling
gender-based violence complaints through these quasi-judicial proceedings, the American Bar
Association urges all campuses to utilize legal best practices to ensure fairness, due process, and
justice.
1
Christopher P. Krebs, Ph.D., Christine H. Lindquist, Ph.D., Tara D. Warner, M.A., Bonnie S. Fisher, Ph.D., &
Sandra L. Martin, Ph.D., The Campus Sexual Assault (CSA) Study, U.S. Department of Justice, (December 2007).
2
Centers for Disease Control and Prevention, An Overview of Intimate Partner Violence in the United States —
2010 Findings, (2014).
3
Matthew J. Breiding et al., Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner
Violence Victimization – National Intimate Partner and Sexual Violence Survey, United States, 2011, Centers for
Disease Control and Prevention Morbidity and Mortality Weekly Report, Vol. 63, No. 8 (2014).
4
For the purposes of this policy, gender-based violence encompasses sexual harassment, sexual violence, intimate
partner violence, and stalking.
1
109A
Rules of Law
The following are enacted federal laws that address and/or affect campus gender-based violence.
Title IX
Title IX of the Education Amendments of 1972 prohibits sex discrimination and states the
following:5
No person in the United States shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.
Pursuant to Title IX, colleges and universities that receive federal funding cannot discriminate on
the basis of sex.6 Sexual harassment, sexual violence, intimate partner violence, and stalking are
forms of sex-based discrimination.7 Furthermore, federally-funded schools must ensure that all
students are able to participate in and/or benefit from educational programs and activities, and
are not denied that opportunity on the basis of sex.8
Gender-based violence creates a hostile environment on campus that “interferes with the
student’s ability to participate in and benefit from the school’s program.”9 In order to maintain
Title IX compliance, colleges and universities must respond promptly and effectively to address
gender-based violence once the school knows or should know that the violence is occurring on
campus. Regardless of a complaint filed by a student, if the school should have known about
gender-based harassment and/or violence on campus, it must promptly investigate to determine
what occurred and take appropriate steps to respond.
Title IX, enforced through the Department of Education’s Office for Civil Rights, requires that
colleges and universities have the following procedures in place: publish and distribute a policy
against sex discrimination; have a Title IX coordinator who oversees all complaints of sex
discrimination; and have and make known the procedures for students to file complaints of sex
discrimination.10
5
20 U.S.C.A. § 1681.
Title IX is not limited to just colleges and universities, but includes any school that receives any federal financial
assistance.
7
20 USCS § 1681.
8
Dep’t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (last visited April
29, 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
9
Id.
10
Dep’t of Educ., Office for Civil Rights, Know Your Rights: Title IX Prohibits Sexual Harassment and Sexual
Violence Where You Go to School, (last visited February 5, 2015),
http://www2.ed.gov/about/offices/list/ocr/docs/title-ix-rights-201104.pdf.
6
2
109A
Clery Act
The “Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act”
(Clery Act)11 requires that all institutions receiving Title IV student financial aid funding do the
following:
 publish an Annual Security Report (ASR);
 maintain a public crime log;
 disclose crime statistics for incidents that occur within defined geography;
 report on crimes in seven major categories;
 issue timely warnings about Clery Act crimes;
 devise an emergency response, notification and testing policy;
 compile and publish an annual fire safety report;
12
 enact policies and procedures to handle reports of missing students.
Included in the major crime categories are sexual violence, dating violence, domestic violence,
and stalking.13 The Campus Sexual Assault Victims’ Bill of Rights is a 1992 amendment to the
Clery Act and requires the following:
Survivors shall be notified of their options to notify law enforcement; accuser and
accused must have the same opportunity to have others present; both parties shall be
informed of the outcome of any disciplinary proceeding; survivors shall be notified of
counseling services; and survivors shall be notified of options for changing academic and
living situations.14
The Clery Act is a separate and different requirement from the requirements of Title IX.
Although Title IX and the Clery Act do not conflict, requirements for school compliance with the
Clery Act and Title IX differ. For example, the Clery Act governs reporting requirements of
certain criminal acts that occur on or near campus or campus property; therefore Clery does not
require the reporting of sexual harassment. Under Title IX, sexual harassment is considered a
form of sex-based discrimination and can trigger federal protections and requirements.
The Clery Act strives to promote campus safety and crime prevention while Title IX addresses
and promotes equal opportunities by prohibiting discrimination on the basis of sex. Because the
Clery Act and Title IX both address sexual violence, it is important to understand a school’s
complete responsibility as it relates to their respective requirements.
Campus Sexual Violence Elimination (SaVE) Act
In March 2013, the Campus Sexual Violence Elimination (SaVE) Act was signed into law under
the Violence Against Women Reauthorization Act of 2013. Campus SaVE further amended the
Clery Act and expanded it to include additional rights to campus victims of sexual violence,
dating violence, domestic violence, and stalking. In many ways, Campus SaVE codified key
11
20 U.S.C.A. § 1092(f).
Clery Center for Security on Campus, Summary of the Jeanne Clery Act, (last visited February 5, 2015),
http://clerycenter.org/summary-jeanne-clery-act.
13
Dating violence, domestic violence, and stalking were added for the first time in 2013, pursuant to the Campus
Sexual Violence Elimination Act, discussed below.
14
Clery Center for Security on Campus, The Federal Campus Sexual Assault Victim’s Bill of Rights, (last visited
February 5, 2015), http://clerycenter.org/federal-campus-sexual-assault-victims%E2%80%99-bill-rights.
12
3
109A
elements of a Dear Colleague: Sexual Violence guidance letter released by the Department of
Education Office for Civil Rights (“OCR”) in April 2011. Many of the requirements are rooted
in the law or trigger the principles of fairness grounded in constitutionally-protected rights of due
process.
Campus SaVE requires that institutions receiving Title IV student financial aid provide students
the following information:






a statement of policy regarding procedures that will be followed once an incident of
domestic violence, sexual assault, or stalking has been reported including the standard of
evidence that will be used during any institutional conduct proceeding arising from such
report;
information in writing about the importance of preserving evidence;
to whom the alleged offense should be reported;
options regarding law enforcement and campus authorities, including notification of the
victim’s option to notify law enforcement (on-campus and local police);
the option to decline to notify such authorities, and, where applicable; and
the rights of victims and the institution’s responsibilities regarding orders of protection.
Additionally, Campus SaVe requires that procedures for institutional disciplinary action in cases
of alleged domestic violence, dating violence, sexual assault and stalking include a clear
statement that proceedings shall:





provide a prompt, fair, and impartial investigation and resolution;
be conducted by officials who receive annual training on issues related to domestic
violence, dating violence, sexual assault, and stalking, and how to conduct an
investigation and hearing process that protects the safety of victims and promotes
accountability;
protect the confidentiality of victims and explain how;
provide written notification of students about existing counseling, health, mental health,
advocacy, legal assistance, and other services available for victims on-campus and in the
community; and
provide written notification of victims about options for, and available assistance in,
changing academic, living, transportation, and working situations, if requested by the
victim and such accommodations are reasonably available, regardless of whether the
victim chooses to report the crime to campus police or local law enforcement.
The accuser and the accused are entitled to the same opportunity to have others present during an
institutional disciplinary proceeding, including the opportunity to be accompanied to any related
meeting or proceeding by an advisor of their choice. Both the accuser and the accused shall be
simultaneously informed, in writing, of




the outcome of the institutional disciplinary proceeding;
the institution’s procedures for the accused and the victim to appeal the results;
any change in the results that occurs prior to the time the results become final;
when the results become final.
4
109A
Campus Administrative Hearings:
Federal Requirements and ABA Recommendations
Funding: The Department of Education Office for Civil Rights (“OCR”) is charged with
removing barriers to students’ full participation in every facet of educational life. OCR is
responsible for ensuring equal access to education by enforcing federal civil rights laws and
implementing regulations that prohibit discrimination on the basis of race, color, national origin,
sex, disability, and age in all educational programs or activities that receive federal financial
assistance.
As of April 6, 2015, 106 colleges and universities were under investigation for alleged Title IX
violations.15 Some schools have multiple violations and therefore, the number of investigations is
at 113.16 The number of investigations nearly doubled over a one-year span and is likely to
continue to rise.
In order to properly and promptly investigate the current allegations of Title IX violations, as
well as future allegations, the Office for Civil Rights (“OCR”) requires adequate funding.
Recommendation: That the American Bar Association urges the federal government to
adopt legislation and appropriate full funding to support the U.S. Department of
Education Office for Civil Rights, in support of its efforts to enforce Title IX of the
Education Amendments of 1972 (20 U.S.C. §1681 et seq.) and other activities designed to
promote access to education free from gender-based violence.
Due Process, Fairness, and Justice: Campus administrative hearings are internal and non-legal,
but that does not exempt them from the need to be unprejudiced, transparent, and just. Over
centuries of practice, the U.S. legal system has evolved tested principles of due process and
evidentiary soundness which can and should inform the campus hearing process, without
imposing unrealistic expectations of legalism on lay practitioners.
For example, the OCR finds the following elements critical for Title IX compliance:
 Notice to students of the grievance procedures;
 Application of the grievance procedures to complaints filed by students or on their behalf
alleging gender-based violence carried out by employees, other students, or third parties;
 Provisions for adequate, relatable, and impartial investigation of complaints, including the
opportunity for both the complainant and alleged perpetrator to present witnesses and
evidence;
 Designated and reasonably prompt time frames for the major stages of the complaint
process; and
 Written notice to the complainant and alleged perpetrator of the outcome of the
complaint.17
15
Tyler Kingkade, Huffington Post, 106 Colleges Are Under Federal Investigation For Sexual Assault Cases, (last
visited April 6, 2015), http://www.huffingtonpost.com/2015/04/06/colleges-federal-investigation-title-ix106_n_7011422.html.
16
Id.
17
Dep’t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (last visited April
29, 2015), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
5
109A
The aforementioned requirements are rooted in fairness and justice for both the complainant and
the alleged perpetrator, beginning with notice of proceedings as well as having proceedings in a
timely and fair manner. OCT also provides that the evidence must allow “adequate, reliable, and
impartial investigation of complaints, including the opportunity for both parties to present
witnesses and other evidence.”18
To maintain a high level of care and professionalism, campus administrative hearings on genderbased violence need to use the aforementioned evidentiary principles. Failure to do so could lead
to the use of prejudicial evidence against the complainant or alleged perpetrator and can lead to a
failure to adhere to due process.
Recommendation: The American Bar Association urges colleges and universities
handling gender-based violence allegations in campus administrative hearings to create
and maintain fair and just hearing processes that adhere to due process and sound
evidentiary principles.
Privacy, confidentiality, autonomy: Rigorously maintaining victim privacy, confidentiality,
and autonomy are core principles of successful gender-based violence intervention, and thus are
reflected in the ABA Standards of Practice for Lawyers Representing Victims of Domestic
Violence, Sexual Assault and Stalking in Civil Protection Order Cases, adopted as ABA policy
in August 2007.19
Recommendation: The American Bar Association urges colleges and universities to
strictly adhere to the spirit and principles of victim privacy, confidentiality, and
autonomy, as described in Title IX of the Education Amendments of 1972 (20 U.S.C.
§1681 et seq.) and the Jeanne Clery Disclosure of Campus Security Policy and Campus
Crime Statistics Act (20 U.S.C. §1092(f)), and disapproves the use of universal mandated
reporting of abuse by campus employees or students.
Off-campus resources and referrals: After an incident, the campus might be the first and only
point of contact that a victim may have. This gives the campus a unique opportunity to provide
an array of resources to a victim. In cases of gender-based violence, empowerment is incredibly
important. After a traumatic event where a victim may feel completely powerless, it is vital that
the victim begin to feel and regain power, control, and agency over his/her own life. A good way
to begin this process is by providing options and allowing the victim to come to his/her informed
decision, without pressure or coercion.
When dealing with campus gender-based violence, there are various community providers in
addition to campus-based services. The usual service providers outside of the campus are the
following: medical, legal, police, and advocacy based. Depending on the location of the campus,
there may or may not be an accessible, local rape crisis organization.
Dep’t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (last visited
April 29, 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
19
ABA Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking
in Civil Protection Order Cases (2007). See, e.g., “Standard III.D.4. Confidentiality and Third-Party Privilege
Issues,” and “Standard III.F.1. Client-Centered Representation.”
18
6
109A
In order to provide the most comprehensive services, it is best that all of the professionals
involved facilitate their response in order to improve overall responses for the victim. The most
effective and comprehensive services are those that are coordinated. The aftermath of genderbased violence is beyond traumatic and additional interactions with service providers can add to
the trauma. Each service provider functions to provide the victim with a specific service. For
example, police officers want to enforce the law and keep communities safe. With this objective
in mind, police officers might struggle with a victim who does not want to report. With a
coordinated community-based response, an informed and trained police officer would understand
the reasons why victims do not always report and might make it clear to the victim that he/she
has this option available when he/she is ready. As with any traumatic event, repeating details of
the event can cause the victim to re-experience the trauma. Particularly with gender-based
violence, the constant repetition of answering similar questions might cause a victim to feel that
the person investigating or inquiring does not find him/her credible. Coordinating responses,
with the consent of the victim, can help alleviate this situation.
The campus is often an insulated community. Its uniqueness has both advantages and challenges.
Campuses can readily and easily provide services such as classroom changes and dorm room
changes that perhaps, another community provider could not provide. However, students who
wish to pursue a criminal case, receive counseling outside of the campus setting, or explore other
options should have this information and other viable resource readily available upon contact
with the school after a gender-based violence.
Recommendation: The American Bar Association urges colleges and universities to
develop and maintain working relationships with state and local civil and criminal justice
systems and community-based victim resources (such as rape crisis centers, domestic
violence support groups, crime victim services, or independent counseling services), and
to provide complainants with direct referrals to, but not mandate participation with,
these resources.
Pro bono service: According to the Office for Civil Rights, if the school permits one party to
have an attorney during a campus administrative hearing, the other party must have this same
opportunity.20 However, the school need not permit attorneys at all. Attorney representation for
both the complainant and the alleged perpetrator can only enhance the implementation of
fairness since the very relationship between a client and attorney is a fiduciary one.
However, the complainant and the alleged perpetrators might not be able to afford an attorney.
With that in mind, an advocate from a community resource center or a law school might be a
resource for assisting students during a campus gender-based violence disciplinary hearing.
If a victim wants to know his/her civil legal options, it is best to refer to a pro bono attorney,
Legal Aid office, law clinic, or local gender-based violence coalition. If a victim wants to know
his/her criminal legal options, it is best to refer to a local police department.
Part of creating an effective referral process is the existence of pre-existing relationships or clear
communication on what services are available and who the best point of contact would be.
20
Id.
7
109A
Recommendation: The American Bar Association urges colleges and universities to
allow the use of attorneys and legal advocates for complainants and alleged perpetrators
at all stages of the campus hearing process, and urges attorneys to provide such services
pro bono;
Special Relationship of Law Schools: Many law schools are connected to a larger university
community, which includes undergraduate programs. Law school is different from most other
educational programs since its focus is preparation for students to become licensed attorneys.
There are ethical and professional requirements for becoming a licensed attorney because of the
fiduciary relationship an attorney has with his/her client. Law school is the first step on this path
and students often receive both theoretical and practical training while in law school.
As future lawyers, law students attending a larger university have a special relationship with the
undergraduate program. Campus SaVE requires that schools use trained officials for campus
disciplinary hearings addressing gender-based violence. In addition to this, law students can
assist with these hearings, particularly when addressing matters that stem from the Federal Rules
of Evidence. Law students, with their fresh knowledge and access to legal research resources,
have a special responsibility to assist their immediate community with addressing gender-based
violence on campus.
Moreover, law schools have faculty expert in civil and criminal process, Constitutional law, the
Federal Rules of Evidence, and other relevant areas of law. These faculty members may be
useful to the larger university in creating or revising its administrative procedures for
adjudicating gender-based violence.
Recommendation: The American Bar Association urges law schools to provide pro bono
assistance to for complainants and alleged perpetrators in campus administrative
hearings and processes, and to provide assistance to university administration with the
creation or revision of such processes.
Conclusion
Through Title IX, campuses are empowered to internally handle gender-based violence
complaints. In some ways, campuses are able to offer campus-specific services such as
classroom and dorm room changes with ease, that perhaps a judge might not be able to order.
Additionally, campus hearings may offer an avenue for adjudication less intimidating to victims
than a court of law, should a victim not wish to pursue civil and/or criminal remedies, as well.
However, gender-based violence is a devastating crime with serious legal consequences in both
criminal and civil courts. Campus administrative hearings are not judicial, yet the very handling
of gender-based violence cases places those who hear these cases in a quasi-judicial capacity.
Many schools consider the finding of gender-based violence to be a violation of the school’s
honor code, the result of which can be expulsion for the offender.
Even the Department of Education relies on pillars of the law including due process and the
presentation of evidence in an adversarial context. Campus administrative hearings must have a
high level of care and professionalism, due to the allegations, the possible disciplinary actions,
and the uniqueness of campus community. The aforementioned resolutions can help ensure
justice and fairness for gender-based violence victims and alleged perpetrators.
8
109A
Respectfully Submitted,
Angela Vigil, Chair
ABA Commission on Domestic & Sexual Violence
August 2015
9
109A
GENERAL INFORMATION FORM
Submitting Entity: Commission on Domestic & Sexual Violence
Submitted By: Angela Vigil, Chair
1. Summary of Resolution(s). The Resolution seeks to address domestic violence, dating
violence sexual assault and stalking on campuses by: urging adequate funding for the federal
offices charged with enforcing Title IX; urging campuses to implement administrative
hearing processes that adhere to due process; urging campuses to respect legal principles of
privacy, confidentiality and autonomy; urging campuses to offer referrals to off-campus
resources, without mandating participation; and finally, urging lawyers and law schools to
offer pro bono service in this area.
2. Approval by Submitting Entity. The Commission voted to support the resolution and report
on May 4, 2015.
3. Has this or a similar resolution been submitted to the House or Board previously? No
4. What existing Association policies are relevant to this Resolution and how would they
be affected by its adoption? None.
5. If this is a late report, what urgency exists which requires action at this meeting of the
House? n/a
6. Status of Legislation. (If applicable) n/a
7. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates. Upon adoption, the Commission on Domestic & Sexual Violence will
work to offer training and technical assistance to campuses to help them in implementing the
goals of this policy.
8. Cost to the Association. (Both direct and indirect costs) none
9. Disclosure of Interest. (If applicable) n/a
10. Referrals. Individual Rights and Responsibilities, Criminal Justice, Commission on Youth at
Risk, Commission on Women, Commission on Sexual Orientation and Gender Identity,
Center on Human Rights
11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address) Vivian Huelgo, Chief Counsel, Commission
on Domestic & Sexual Violence, 1150 Connecticut Avenue, NW, Suite 400, Washington,
DC 20036, (202) 662-8637, vivan.huelgo@americanbar.org
10
109A
12. Contact Name and Address Information. (Who will present the report to the House?
Please include name, address, telephone number, cell phone number and e-mail address.)
Angela C. Vigil, Esq., Baker & McKenzie, LLP, Sabadell Financial Center, 1111 Brickell
Avenue, Suite 1700, Miami, FL 33131, 305-789-8904, angela.vigil@bakermckenzie.com
11
109A
EXECUTIVE SUMMARY
1. Summary of the Resolution
The Resolution seeks to address domestic violence, dating violence sexual assault and stalking
on campuses by: urging adequate funding for the federal offices charged with enforcing Title IX;
urging campuses to implement administrative hearing processes that adhere to due process;
urging campuses to respect legal principles of privacy, confidentiality and autonomy; urging
campuses to offer referrals to off-campus resources, without mandating participation; and finally,
urging lawyers and law schools to offer pro bono service in this area.
2. Summary of the Issue that the Resolution Addresses
Outside of college and university campuses, there are two legal approaches for handling genderbased violence: civil or criminal courts. On campuses, a third option is available: the campus
administrative hearing. Though not a legal process, the campus hearing is a quasi-judicial
proceeding because of the nature of the complaint and the ramifications for both the complainant
and the alleged perpetrator. Each campus has its own internal grievance process and array of
punishments and protections if the proceedings result in a finding against the alleged perpetrator.
There are a variety of reasons why a victim of gender-based violence might chose to initiate a
campus administrative hearing, in lieu of, or in addition to, traditional legal proceedings.
Avoiding the disruption, expense, and emotional turmoil of a legal proceeding might be one
reason. Also, campus hearings have the advantage of being uniquely able to offer campusspecific remedies that may be more suitable and appealing to the complainant, such as
permission to drop a class or withdraw altogether without penalty, to change dorm rooms or
parking spaces, to alter a class or dining schedule, or even to seek expulsion of an offender.
However, campuses may be ill-prepared to address such serious allegations as rape, stalking or
dating violence in administrative proceedings which have traditionally addressed matters such as
academic dishonesty and class pranks. The harshest punishment of expulsion has significant
collateral economic consequences for the alleged perpetrator. Additionally, the grievance
proceeding can re-traumatize the complainant if not conducted in accordance with established
best practices.
3. Please Explain How the Proposed Policy Position will address the issue
While colleges and universities continue handling gender-based violence complaints through
these quasi-judicial proceedings, the American Bar Association urges all campuses to utilize
legal best practices to ensure fairness, due process, and justice.
4. Summary of Minority Views
None reported.
12