Law Professor's Proposal for Reporting Sexual Violence Funded in Virginia, The Hatchet

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1 Law Professor John Banzhaf s Novel Approach for Investigating and Adjudicating Allegations of Rapes and Other Sexual Assaults at Colleges About to be Tested in Virginia Law Professor's Proposal for Reporting Sexual Violence Funded in Virginia, The Hatchet Jan 31, 2016: Virginia universities may start using a new way to report sexual assaults that a GW law professor proposed. John Banzhaf, a public interest law professor, proposed during a National Press Club event last spring a third ground in sexual assault reporting to make the process safer for survivors and create more consistent disciplinary actions for perpetrators. The Commonwealth of Virginia announced last week it is exploring a centralized system outside of universities to deal with campus sexual assaults similar to the model Banzhaf suggested. Banzhaf said the proposal involves hiring trained investigators to review sexual assault cases at member schools, who could opt into the program, which would be specifically for colleges and universities. Banzhaf said the proposal is necessary because neither campus police nor university officials are equipped to handle sexual assault cases. The Department of Education is investigating more than 160 colleges and universities for their responses to sexual violence, and for many schools, properly handling sexual assault cases requires additional staff and training that have left some unprepared. Banzhaf said these types of cases are almost impossible to prove beyond reasonable doubt because these cases involve he-said-she-said arguments and minimal solid evidence. He added that inefficient sexual assault investigation techniques and bias from universities trying have caused real screw-ups on all sides. It seems to me very clearly that most universities, even large good ones like GW, lack the resources to do these things because investigating any kind of rape takes special training, Banzhaf said. Virginia s proposed program would create a regional center to investigate sexual assault cases, removing the burden of investigation from universities, Inside Higher Ed reported. Virginia Gov. Terry McAuliffe allocated $100,000 last month in response to a proposed initiative to study and create the center. This money would be used to hire officials for the center and put it into practice among Virginia s public universities, which would have the option to join. GW has faced at least two Title IX-related lawsuits. In 2011, GW revamped its sexual assault policy to make clear the rights of perpetrators and survivors, as part of the settlement of one of the Title IX lawsuits. Although Banzhaf said Virginia s plan is a step in the right direction, he questioned how effective it would be because Virginia is a large state with many colleges spread out across the region. He said he had initially called for the plan to be tested in a city like Boston or D.C., rather than in an entire state.

2 Banzhaf said the consortium will ideally handle the investigation as well as the decisions on punishments, which would rely on the consortium s board of directors, hiring retired lawyers and retired judges who have no connection with the schools and can sit on panels to decide if, in their legal opinion, a sexual assault occurred. Banzhaf said a key benefit of his proposal is eliminating all "suspicion of bias." No one can point a finger and say this consortium did a bad job with the investigation or a bad job with the adjudication, Banzhaf said. Investigating Sexual Assault, Regionally State of Virginia Has Proposed a Pilot Program That Would Create a Regional Center for Investigating Cases of Campus Sexual Violence, Inside Higher Ed Jan 25, 2016: The state of Virginia is exploring the creation of a regional center that could take sexual assault investigations out of the hands of colleges and universities. Last month, Terry McAuliffe, the Democratic governor of Virginia, proposed a $240 million higher education spending plan. Included in the initiative is funding for a $100,000 study that would determine how to design a pilot program to create a regional center for the investigation of incidents of sexual and gender-based violence similar to the multidisciplinary approach used in child advocacy centers. The center would be staffed with trauma-informed investigators who would coordinate with colleges and law enforcement officials alike to investigate cases of sexual violence that occur on college campuses. The study will explore the potential center s expected costs, financial support and staffing needs, as well as create a sample memorandum of understanding for use between institutions, law enforcement and the state s attorneys offices.... In recent years, several legal experts and advocates have proposed creating a centralized system for investigating cases of campus sexual assault, but many said this week that they believe this is the first time a state has begun to actively explore and fund the idea. When discussing the investigation and adjudication of campus sexual assault during a panel discussion at the National Press Club in March, John Banzhaf, a law professor at George Washington University, advocated for what he called a third ground -- an option that exists outside of institutions and law enforcement, which he said have their own biases, pressures and motivations that can trip up an investigation. But a consortium wouldn't be pushed in any way at all, Banzhaf said. They don't have donors, they don't have basketball teams. They are completely and totally impartial. Banzhaf s plan, similar to the proposed Virginia center, would be to create a regional consortium, with colleges pooling their resources to fund a team of trained investigators they can call upon when responding to cases of campus sexual assault.

3 Virginia Considers Novel Approach to Campus Sexual Assaults Adopts "Compromise" Approach First Proposed By Law Professor Jan 25, 2016: Because colleges have inherent conflicts of interest in investigating campus sexual assault claims and usually cannot afford to employ their own trained sex crime investigators, the state of Virginia is formally considering using a novel "compromise" approach which would eliminate these biases as well as provide sufficient resources for a proper investigation of reports of sex crimes; an approach first suggested and popularized by a public interest law professor. Instead of having individual colleges investigating reports of date rapes and other sexual assaults on their own campuses, this new approach now awaiting funding by the state legislature would establish "a regional center for the investigation of incidents of sexual and gender-based violence similar to the multidisciplinary approach used in child advocacy centers. Instead of the usual procedure of having such investigations conducted by campus police who typically lack training in the special techniques and sensitivity required to investigate reported sexual assaults, the center would be staffed by experienced sex crime investigators who would not be subject to pressures from the individual colleges whose reports they are investigating. Colleges face inherent conflicts of interest when they investigate reports of date rapes by their own students, notes public interest law professor John Banzhaf. On the one hand, there is pressure not to find that a rape has occurred in order to protect its own reputation. No college wants to be known as "Rape U," he suggests. On the other hand, colleges face increasing pressure from the federal government to crack down on campus rapes to avoid Title IX investigations and even possible loss of federal funds, he explains. In announcing this new development, INSIDE HIGHER ED reported: In recent years, several legal experts and advocates have proposed creating a centralized system for investigating cases of campus sexual assault, but many said this week that they believe this is the first time a state has begun to actively explore and fund the idea. When discussing the investigation and adjudication of campus sexual assault during a panel discussion at the National Press Club in March, John Banzhaf, a law professor at George Washington University, advocated for what he called a third ground -- an option that exists outside of institutions and law enforcement, which he said have their own biases, pressures and motivations that can trip up an investigation. But a consortium wouldn't be pushed in any way at all, Banzhaf said. They don't have donors, they don't have basketball teams. They are completely and totally impartial. Banzhaf s plan, similar to the proposed Virginia center, would be to create a regional consortium, with colleges pooling their resources to fund a team of trained investigators they can call upon when responding to cases of campus sexual assault. Banzhaf s proposal, which has been featured in the New York Times, Chronicle of Higher Education, U.S. News, Washington Examiner, and National Public Radio, is widely seen as a compromise between those who argue that rape, like other serious crimes, should be investigated by police and not universities, and others who suggest that conventional law enforcement does a poor job with these types of cases.

4 Colleges May Turn Date Rape Allegations Over to Regional Consortia Irreconcilable Conflicts of Interest, Huge Costs, Fatal Exposures Prompting Change June 1, 2015: Recent articles in the New York Times, Wall Street Journal, Chronicle of Higher Education, Washington Post, Boston Globe and other leading papers highlight the many problems colleges continue to face now that they have been required by the Department of Education to investigate and adjudicate allegations of date rape on their campuses. Colleges, faced with irreconcilable conflicts of interest, over $100 million in costs which are still increasing, inexcusably long delays, and fear of a total cutoff of federal funds or huge judgments in courts, are looking for better ways to handle these allegations. One approach finally being seriously considered is to turn the investigations and even the adjudications over to a consortium of many universities in the same city or region which could handle the tasks with the expertise most can't afford to maintain and the impartiality which they cannot possibly achieve, but which is increasingly being demanded of them, says public interest law professor John Banzhaf. Banzhaf, widely credited with coming up with a compromise between having such cases handled solely by law enforcement authorities, or, alternatively, by individual institutions of higher learning, notes that the Chronicle of Higher Education recently reported that: "Some college leaders are quietly talking about other alternatives. Could they pool their resources and create regional tribunals staffed by legal experts to handle rape allegations?" The article, entitled Should Colleges Be Judging Rape?, points out that even Sen. Kirsten Gillibrand, who has championed the move to provide more protection for women on campuses, has conceded: "Right now, the process... on college campuses serves no one... It's a broken system." The Chronicle also points out the "inherent conflicts" which occur when colleges try to do the job themselves. Having too many guilty findings and a college can be "branded a 'rape haven,'" but being perceived as not having enough can lead to a federal investigation and possible loss of all federal funding. But, as Banzhaf has noted in several publications in which he is cited as a expert, colleges in the same city could pool their resources to establish a private SVU-type consortium funded by many colleges, which would have the resources to employ experienced sex crime investigators who would have none of the inherent conflicts of interests or appearances of impropriety which individual colleges cannot escape. Here s what U.S. News said in an article entitled Is this the Solution to the Campus Rape Conundrum? - Could Universities Share Investigators like a Library Consortium Shares Books,?: "If there's one thing the anti-campus rape movement and the backlash it's prompted can agree on, it s that schools have struggled with handling allegations of sexual assault.... To appease the concerns of both victims and the students they accuse... John Banzhaf, a public interest law professor at George Washington University is backing a solution he says would also benefit schools struggling to support the resources required to internally investigate sexual assault." U.S. News continues: Banzhaf's proposal... would be to set up an independent organization funded and shared by schools in a geographic area, akin to a consortium of universities that shares everything from library books to teaching staff. Colleges in a specific area, such as in and around the nation's capital, would pool funding to finance a team of experts fully trained in investigating campus sexual assault. If adjudication is deemed necessary, the schools could refer a case to an independent arbitration panel set up to hear it and mete out punishments.

5 'Such regional consortia could easily afford to have t and keep on staff two or three or even four people because they are covering 30 to 40 colleges. They would have the training, they would have the expertise, to interview the victims fairly and properly, to get and preserve the evidence, and to do so in a completely impartial way,' Banzhaf said." Quoting further from Prof. Banzhaf, the article goes on to say that: "Aside from addressing concerns about competency, Banzhaf contends an independent organization could remove bias real or perceived from the process. 'Colleges on the one hand are pushed not to find rape. It can hurt their reputation who wants to be known as 'Rape U' he said Friday. And then colleges are pushed in the other direction by [the Department of Education] and many of the activists and organizations. 'But a consortium wouldn't be pushed in any way at all. They don't have donors, they don't have basketball teams. They are completely and totally impartial.' As a first step, Banzhaf says he would like to see the federal government offer grant funding for a trial program in a metropolitan area." According to U.S. News, many experts also agree that the idea should be tried, especially since no one seems to be happy with the current system. Earlier, the Washington Examiner, in a piece entitled "Four Better Ideas to Fight Campus Sexual Assault," included the following: "Banzhaf, a law professor at George Washington University Law School and one of the leading voices on the issue of due process, provided the Examiner an extensive proposal for reforming how colleges handle sexual assault claims. As for letting colleges and universities handle the cases exclusively, Banzhaf said that sexual assault is too serious an issue. These system[s] are designed primarily to handle minor infractions (e.g., underage drinking, minor mischief, brawls, etc.), which can easily be investigated by campus police... because the evidence is usually pretty clear, he said. The punishments for these infractions are generally not that severe, Banzhaf said." "But for sexual assault, campuses need specially trained investigators who follow standardized procedures/protocols, which include careful intake questions of the accuser as well as the accused, the careful preservation of evidence, etc. Banzhaf noted that virtually no campus has enough sexual assault cases to employ a trained professional full-time. Banzhaf instead believes that, at least in areas with multiple universities, the schools could establish a consortium - an independent entity with training that would investigate the accusations. If these investigators concluded that prosecution/adjudication wasn't warranted, they would report that to the school, the matter would be dropped, and no one could reasonably suspect either bias or a careless investigation, Banzhaf said." If prosecution was warranted, the consortium could also perform that function, presumably using retired judges, retired sex crime prosecutors, retired attorneys, etc. - this would be similar to organizations which now provide arbitration determinations for a reasonable fee, he added. Alternatively, the consortium could prosecute the case before an existing arbitration organization or panel. Such a proposal would ensure, Banzhaf said, that the matter was adjudicated properly without any possible bias. National Public Radio also reported favorably on the idea, saying: "John Banzhaf, a George Washington University law professor, says schools who use their own staff to decide these cases always will be suspect. He says it's only slightly better when cases are decided by outside investigators who are hired by schools. An even better idea, Banzhaf says, would be to create a totally independent consortium of professionals to both investigate and judge cases. Under such a program, he says, 'there can be no thought that favoritism is being given because someone is a big athlete or that daddy's a big donor, and the standards will be the same across the board to me it's a win-win-win for everybody.'"

6 When five experts were asked by the New York Times to address the problem of rapes at colleges and universities, Prof Banzhaf suggested the following: "One possible way to assure women effective and sensitive investigations, while protecting men from unfair procedures prompted by federal pressures to convict, might be to have all investigations and adjudications handled not by individual colleges, but by consortia of colleges that could afford to employ experienced sex-crime detectives to impartially investigate all allegations, and panels of retired judges to adjudicate guilt whenever the evidence warrants.