By Doug McLeod
College campuses may be among the safest places in the country, but cases of sexual assault and far less frequent incidents of gun violence have prompted widening efforts to deal with the risks.
Administrators are facing stricter enforcement of federal mandates to prevent sexual violence and to resolve cases quickly and equitably. At the same time, schools risk being sued by the accuser or -- increasingly -- by the alleged assailant over claims of being treated unfairly in the adjudication process.
Many colleges and universities have responded by expanding student education programs and strengthening administrative procedures, though some schools struggle to comply with federal rules, experts said.
Meanwhile, the risk of campus shootings, while relatively remote, has prompted a range of risk management actions, including creation of threat assessment teams to identify at-risk students, use of campus-wide emergency notification systems, and more training of campus police. The recent massacre at Sandy Hook Elementary School in Newtown, Conn., has also revived the thorny issue of allowing concealed weapons in schools. (See related story on page 35)
The accuracy of the reporting of the frequency of sexual assaults at institutions of higher education is a matter of debate. The number of forcible sex offenses reported to the U.S. Department of Education by degree-granting post-secondary schools jumped to 4,197 in 2011, up almost 16 percent from the 3,620 reported in 2010.
Even with that jump, experts said that campus sexual attacks are vastly underreported. A 2007 survey prepared for an arm of the U.S. Justice Department concluded that one in five women are victims of attempted or completed sexual attacks while in college; others dispute this finding, noting that this rate of assaults would be far higher than for the population as a whole.
There's also a "misperception of risk" among students, said Frank Vinik, director of risk management for United Educators Insurance, a Reciprocal Risk Retention Group, based in Chevy Chase, Md.
The assailant who "jumps out of the bushes" to attack someone walking alone on campus at night is a rarity, Vinik said. Instead, most victims know their attackers; most assaults occur behind closed doors, with no witnesses. In more than 90 percent of the cases where United Educators has paid money on an assault claim, the accuser was under the influence of alcohol or drugs and in about two-thirds of those cases was so intoxicated she had no clear memory of the incident, he said. The majority of alleged assailants are also typically under the influence, he added.
In 63 percent of United Educators' claims, the victim was a first-year student, possibly less familiar with the effects of alcohol and less wary of potential predators, Vinik said.
Whatever the circumstances, colleges are under increasing pressure to deal more effectively with the problem. Federal authorities, for example, are actively enforcing the provisions of a 2011 "Dear Colleague" letter in which the Department of Education's Office for Civil Rights spelled out colleges' obligations under Title IX of the Education Amendments of 1972.
Title IX outlaws sex discrimination in education -- including harassment and sexual violence -- and the 2011 letter required institutions to:
* Appoint a Title IX coordinator to oversee complaints and manage compliance with the law.
* Investigate complaints within 60 days and adopt procedures to resolve complaints equitably, including allowing both sides to call witnesses. The OCR's letter also specified the burden of proof complainants must meet, mandating a "preponderance of evidence" standard rather than the higher "clear and convincing evidence" threshold used by some schools.
* Provide preventive education on sexual harassment and violence, possibly as part of orientation events for new students, faculty and staff; and training for residential advisers and student athletes and coaches.
* Coordinate with law enforcement officials, letting them conduct their own investigation but not putting the school's investigation on hold pending a resolution of criminal charges.
The University of Montana at Missoula and its football team became high-profile subjects of a Title IX complaint last year, and the Justice Department and OCR are investigating the university's handling of reported student sexual assaults, which they said numbered at least 11 during an 18-month period before May 2012. One former University of Montana football player pleaded guilty to rape last September and another is currently on trial. Starting last fall, the university began requiring all students to take an online tutorial on preventing sexual violence.
In another high-profile case, Yale University last June reached a settlement with the OCR over a Title IX complaint alleging that the university failed to deal properly with a sexually hostile environment on campus. The complaint followed a 2010 incident in which fraternity pledges chanted "no means yes" and other slogans in front of a university women's center. Yale has since revamped its Title IX oversight structure and created a committee to advise the president on preventing sexual misconduct, according to Department of Education records.
Risk managers, particularly at smaller colleges, may be tempted to "throw up their hands in despair" at the forest of Title IX compliance requirements, said Vincent Morris, executive director-higher education practice with Arthur J. Gallagher & Co. in Itasca, Ill. Some small schools may not have the staff or organization to handle the compliance burden and some may not even be fully aware of the requirements of the 2011 "Dear Colleague" letter, he said.
Other schools are aware of their obligations and have adequate policies and procedures in place but may then fail to follow them, Morris added.
In many cases, though, higher education institutions have responded "nobly" in revising and implementing procedures for handling sexual violence risk, said John McLaughlin, managing director with Gallagher's Higher Education practice.
The problem hasn't gone away, but "now there is a much more proactive response to it," agreed Teena Hostovich, Los Angeles-based executive vice president with the insurance broker Lockton Cos. LLC.
Even with better prevention and disciplinary programs, colleges and universities still face lawsuits from both accusers and accused over alleged unfair treatment or failures to follow the strictures of Title IX, experts said.
The circumstances of most assaults -- abuse of alcohol or drugs, impaired memories and the lack of witnesses -- make adjudicating cases extremely difficult.
"It can get very ugly, and can be very unclear," Hostovich said.
United Educators has dealt with a "significant number" of suits involving student sexual assault, Vinik said, and the "incredibly high" stakes for both parties makes it more likely that one or the other will sue the school.
Accused assailants are increasingly the plaintiffs in these suits, charging that they were unjustly treated in the adjudication process, observers agree.
For example, Edwin Bleiler, a former senior at College of the Holy Cross in Worcester, Mass., is suing the school over his expulsion for allegedly having sex with a woman who was intoxicated and could not give effective consent, court records show. He argued that she was not incapacitated and that the encounter was consensual.
The suit alleges that Holy Cross violated Title IX because its disciplinary procedures were not equitable, and that the school breached a contract with him by failing to follow some of its own procedures. Holy Cross has denied the allegations.
A lawsuit brought by a former male student against University of the South in Sewanee, Tenn., resulted in a $26,500 jury verdict against the university last August.
Doug McLeod writes about risk management and insurance. He can be reached at email@example.com.
March 1, 2013
Copyright 2013© LRP Publications