BY SHARON INKELAS | SPECIAL TO THE DAILY CAL
To many observers, the campus process for responding to complaints of sexual misconduct is opaque. It has a lot of steps, it takes a long time, and often, the results are not public. But it does not have to be a complete mystery.
The process has a lot of steps in order to ensure oversight and to allow parties in a case the opportunity for input and review. It takes a long time because it has to be done carefully and requires coordination among people with diverse schedules. Confidentiality and privacy restrictions often prevent the results of the process from being publicly known.
The parties in a case have the right to know where an investigation or disciplinary case stands, but the general public often does not find out. This can be frustrating to those who want to know if the system is working. Rights to confidentiality and privacy for the parties in a sexual violence or sexual harassment situation are crucial to protect. But this does not mean that the process itself should be a secret.
An important feature of the campus response to reports of sexual harassment, sexual violence, stalking or other alleged conduct prohibited under the UC Policy on Sexual Violence and Sexual Harassment, or SVSH, is that it has three very distinct components: immediate and ongoing safety and care provision; investigation; and the disciplinary process.
When misconduct occurs, a first stop for a survivor is often a confidential resource, such as the PATH to Care Center, which provides fully confidential support, care, options and information. A survivor might alternatively first go to the campus Title IX office, termed the Office for the Prevention of Harassment and Discrimination, or OPHD. Regardless of which office is a survivor’s first stop, the first response by either office is to take immediate steps to protect a survivor’s safety as is appropriate. Such measures could include referral to medical care, drawing up no-contact directives, designing academic accommodations or supplying emergency housing.
When most people think about the campus response to misconduct, though, they are focusing on the investigation and disciplinary stages. These are quite distinct and occur in sequence.
Investigation of SVSH allegations is carried out by OPHD. This is true regardless of whether the survivor, or “complainant,” is a student, staff or faculty member; it is true regardless of whether the accused, or “respondent,” is student, staff or faculty. OPHD investigators have special training, and their procedures are tightly governed by federal (Title IX), state and UC systemwide regulations.
When an allegation is reported to OPHD, there is a range of options. Here are the typical ones: Sometimes a complainant doesn’t wish to pursue the allegation then (or ever) with OPHD, or a third party makes a report but doesn’t know the name of the respondent. Under those circumstances, OPHD often has no choice but to let the matter rest until something changes. Outside observers who know that something happened may wonder why OPHD is not taking action, but OPHD is not able to discuss the matter, nor should the complainant or respondent have to disclose any information. They have rights to privacy.
For complainants who do want to move forward with a resolution of the matter, there is a choice of how to do that. For some situations, complainants and respondents decide to participate in an “alternative resolution,” which is the less formal of the two options. An alternative resolution might involve a space-sharing agreement where the two parties can avoid interaction, counseling for one or both parties, or some other solution tailored to the particular situation.
When a complainant wishes, however, and if there is enough to go on, OPHD will conduct a formal investigation. This involves interviewing witnesses and assembling evidence. The complainant and respondent are interviewed separately, and only if they agree to participate. Nobody can be compelled to talk to OPHD. The availability of interviewees is one of the factors that can contribute to the length and outcome of an OPHD investigation. Another is the sheer complexity — and surprising twists and turns — of some cases.
At the end of its investigation, OPHD writes a report, to which both parties have a chance to respond before it’s finalized. If OPHD finds by a preponderance of the evidence (more likely than not) that a violation of the UC Policy on SVSH occurred, the report is considered to be a “finding” and is referred to the campus authority responsible for disciplinary action.
The reasons that there are distinct processes for each group are complex and mainly have to do with employment rules. But all groups face serious penalties for serious misconduct. For students, staff and tenured faculty alike, the most egregious misconduct can lead to dismissal.
It’s not possible in this space to discuss all three disciplinary processes, but detailed information on all can be found at ophd.berkeley.edu. Most of the questions I receive have to do with the faculty process, which is of heightened interest to our community partly because faculty misconduct is such a betrayal of the fundamental mission of the university: to teach and support students. The faculty discipline process has a checkered past. Sometimes it’s taken too long, and it hasn’t always been applied consistently. For those and other reasons, the university has changed its policies in several important ways in the last few years.
Under the current policy, once there’s been an OPHD finding involving a faculty respondent, the vice provost for the faculty consults a standing faculty Peer Review Committee, which considers the finding and offers advice on an appropriate resolution. The vice provost basically has two choices: work out a legally binding settlement agreement with the respondent (attorneys help with this) or file disciplinary charges.
The Academic Personnel Manual, which governs many fundamental operations of the university, specifies exactly six possible charges. These range from a letter of censure up to dismissal. Because of this restricted set of charges, settlement agreements are sometimes the preferred option. They allow more nuance and choice and can be completed more quickly. Sometimes the same outcome that could be achieved by filing charges can be achieved faster and with less effort through negotiation.
But negotiation is not always possible or appropriate. In such cases, the vice provost will file charges with the faculty Committee on Privilege and Tenure. This is a complex process. Both the administration and the faculty respondent are typically represented by attorneys. Witness lists and exhibits have to be agreed to; a hearing, which often takes two to four full days, has to be scheduled at a time when the parties, their attorneys, the hearing panel and all the witnesses are available. After the hearing, a court reporter prepares a transcript and the committee deliberates. When there are thousands of pages of testimony and other evidence to digest, deliberation can take a long time. Ultimately, the committee writes a lengthy report which analyzes the evidence and recommends a disciplinary outcome. The parties can respond; under certain situations the chancellor and even the regents have a say. It can take many months from start to finish.
No matter how robust the campus process is or how much is known about any particular outcome, punishing an offense will still never be the end of the story. For survivors, the pain remains. Furthermore, sexual harassment and sexual violence are offenses that can harm an entire community. A community affected by this kind of trauma needs to come together, create a supportive environment and heal.
And most importantly, no matter how perfectly we hone the investigation and discipline process, ultimately our goal should be to never have to use them. Our goal should be to continue working to change the culture so that sexual harassment and sexual violence are broadly unacceptable and don’t occur.
Sharon Inkelas is UC Berkeley’s special faculty adviser to the chancellor on sexual violence and sexual harassment.