DeVos rollback worries local rape center, campus

The Enterprise — Elizabeth Floyd Mair 
With the flags behind her flying at half-staff to mark the mass murders in Las Vegas the night before, Karen Ziegler of the Albany County Crime Victim and Violence Center speaks on Oct. 2 outside the New York State Police Academy, where she was attending a conference on sexual assault. 

ALBANY COUNTY — After the federal government issued a new guidance document for determining whether a sexual assault occurred on a college campus, advocates who work with victims locally expressed concerns.

The head of a county center for sexual-violence survivors praised the standards now in use and said that the center is helping victims feel confident to come forward. The Title IX coordinator at the University at Albany said that fairness toward both parties, accused and accuser — which the federal government has said it wants to ensure — is already the rule of the day in all UAlbany investigations of sexual assault.

United States Secretary of Education Betsy DeVos announced on Sept. 22 new interim guidance, saying that schools should choose between using the current standard of determining whether an assault occurred — “a preponderance of the evidence,” or the more stringent “clear and convincing evidence” standard, which requires a higher burden of proof.

But New York is one of just three states in the country, along with California and Illinois, that has laws that will “protect students here, even if the federal government rolls back protections,” says Karen Ziegler, director of the Albany County Crime Victim and Violence Center.

County sees increase in victims

Ziegler said her center sees many college students who report sexual assault, although it is a county and not a campus organization. “All the colleges offer us as a community resource,” she said. While some people feel comfortable using the resources available on a campus, like an advocacy or counseling center, she said, others prefer the relative anonymity of the county center in downtown Albany.

The county center sees victims in emergency rooms immediately following the assault, and then offers them follow-up counseling. The center serves not only the victim, but also offers free counseling to roommates or family members who may be traumatized as well, Ziegler said. Some of the students who come in during summer or winter break attend schools in other states “whose programs are not as robust as ours in New York” and who are “not receiving the support that they need,” Ziegler said.

Staff and volunteers from the center accompanied a total of about 350 people, including students, to hospital emergency rooms during the past year, said Ziegler, who noted that this was a dramatic increase over the approximately 225 to 250 emergency-room accompaniments that the center had averaged in recent years.

Ziegler thinks that this increase is due primarily to Governor Andrew Cuomo’s Enough Is Enough legislation, enacted in 2015, which was intended to encourage victims and witnesses to report sexual assault and which creates uniform policy and reporting requirements for all higher-education institutions. Another factor, she said, has been “the conversation that we’re having around sexual assault.”

Federal laws were on the books, Ziegler said, but not being followed, including Title IX, which says that no one may be excluded from participation in or be discriminated under any education program or activity that receives federal financial assistance, and the Clery Act, which requires colleges to record campus crime statistics and to make timely warnings when a crime is committed that may threaten others in the campus community.

What changed this in New York State, she said, was the issuance of a “Dear Colleague” letter in 2011 that reminded people that the laws needed to be followed, as well as Cuomo’s “Enough Is Enough” legislation from 2015. In September, the governor issued an in-depth report that tracks how well individual colleges are doing at complying with Enough Is Enough.

About 39 percent were deemed compliant, another 49 percent were “significantly compliant” but lacked some services or consistency, and 12 percent were non-compliant.

Locally, UAlbany, The College of Saint Rose, and The Sage Colleges were among those found to be compliant, which means meeting or exceeding the requirements. Rensselaer Polytechnic Institute was found to be significantly compliant, meaning it meets most requirements and does not meet others; the report noted that RPI did not mention targeting student leaders, athletes, or high-risk students for training.

Marc J. Cohen, president and trustee of the SUNY Student Assembly, issued a statement in September saying, “The Student Assembly reaffirms its support for the It’s On Us Campaign and will continue to endorse efforts geared toward enhancing safety on our campuses and justice for all.” It’s On Us is a 2014 federal initiative urging college students to pledge to help prevent sexual assault on campus.

Ziegler said that efforts in New York State to strengthen the laws that protect victims are paying off and are likely behind the increased number of people contacting the center for help. “I think it is definitely the fact that roommates are hearing about it and encouraging the victims to go. The victims themselves are hearing more about this, and feeling safer and they’re feeling that it’s going to matter to someone. Someone’s going to listen and believe them.”

Members of her staff or center volunteers go to the hospital in the middle of the night or whenever needed, Ziegler said. They support the victim in every decision that he or she makes regarding whether to go ahead with a criminal procedure and, in the case of a student, a campus administrative investigation. “It’s really something the victim has to do, and we support them no matter what decision they make. Even just going to the hospital is still a courageous act,” she said.

DeVos’s rollback “leans more heavily toward protecting the accused and the perpetrators,” Ziegler said. “And it removes the rights, and it takes away the confidence of the victims that they’re going to be believed or that anything will happen.”

DeVos in September withdrew the 2011 “Dear Colleague Letter” as well as a 2014 Q&A on sexual misconduct from the U.S. Education Department’s Office for Civil Rights, and issued a new Q&A on campus sexual misconduct, urging “basic fairness” in considering the rights of both accuser and accused.

UAlbany stays the course

“Not just because it’s the law, but because it’s the right thing to do,” said Chantelle Cleary. She was explaining why the University at Albany would continue to follow Enough Is Enough legislation, and also “continue to try to go above and beyond” to prevent sexual violence, stop it when it does occur, and then remedy the effects of that violence on the entire campus community.

Cleary is UAlbany’s assistant vice president for equity and compliance and Title IX coordinator. She is a former prosecutor with the Special Victims Unit of the Albany County District Attorney’s Office.

Asked about balancing the rights of the accuser against the rights of the accused, Cleary said that that was “essential to getting this right.” It’s essential for both accuser and accused, she said. “Nobody benefits if the process is unfair” or unbalanced, she said.

Prior to DeVos’s announcement, Cleary said, “a fair and balanced process” was essential not only at UAlbany but across New York.

She looks at each new report of sexual assault as “a blank slate,” she said.

“I do an investigation, making no assumptions as to whether it’s a false report or it’s true, because every case is different,” Cleary said. “What we do is we take the report and we do a very thorough, very complete investigation that is fair to both parties; we give each party an opportunity to be heard and to present information to be entered in the final adjudication.”

She emphasized that the campus administrative process that determines whether someone has violated the student code of conduct is completely distinct and separate from any potential criminal-justice investigation of the same incident. They are two “totally different processes,” she said, involving different definitions of, for instance, consent, and different standards of proof.

Universities, historically, do not wait until a criminal case is completed to do their internal investigations of complaints, “whether it’s for a robbery, or possession of drugs, or sexual violence,” she said.

Is she worried about DeVos’s rollback?

“It’s hard for me to answer that question,” Cleary said, adding, “I will say I’m proud to be from a state where we have a governor that has made this an issue of importance … And I’m comforted in knowing that we’re in a state where we’re going to continue to make supporting our students, and changing culture, a priority.”

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