Indiana State University defining terms to comply with SaVE act

To comply, ISU policy must define and prohibit dating violence, domestic violence and stalking, and ISU also must keep statistics on those incidences, something it has done for its 2014 security report.

In addition, it must define "consent" or agreement to have sexual activity — no easy task since Indiana does not have a statutory definition of consent. "I expect this will be a topic that would take up a lot of our discussion time as we move the policy through shared governance here at ISU," said Katie Butwin, ISU's general counsel.

She spoke during a trustee seminar on Title IX and the Campus SaVE Act Thursday. ISU has been, and continues to address, changes required through both Title IX and SaVE, she said.

Butwin told trustees it might be easier to define consent in terms of defining the lack of consent. For example, "If you're incapacitated, you really can't give consent," she said.

Her presentation included higher education sexual assault claims data provided by an insurance company, United Educators, from 2011-13 that found: 54 percent of victims in reported claims were freshmen; in 33 percent of the reported claims, the victim was unable to consent because he/she was drunk, passed out or asleep; and in 78 percent of reported claims, one or both (victim and/or perpetrator) consumed alcohol.

The data represent claims involving possible litigation, but not actual lawsuits.

It was noted that Indiana state Rep. Christina Hale (D-Indianapolis) had introduced a bill to define consent, modeled after language in a California law, in which consent would require the "affirmative, conscious, and voluntary agreement to engage in the sexual activity."

The bill will not advance this year, although Hale hopes to create a working group to address it and related issues, the state legislator said in a separate interview Thursday.

ISU will look at how other Indiana colleges are defining "consent," Butwin said. Indiana also does not have a criminal statute that defines dating violence.

After the seminar, Butwin emphasized ISU's code of student conduct does encompass such issues as domestic battery and domestic violence "in terms of physical altercations." But under SaVE, it must develop clearer definitions.

SaVE goes beyond sexual assault and violence. "It does require we have obligations in responding to dating violence, domestic violence and stalking," Butwin said. SaVE amends the Violence Against Women Act and Clery reporting requirements.

Butwin noted that the requirements apply to off-campus conduct "if it negatively affects the educational environment."

Under Title IX, once a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred (subject to confidentiality concerns).

Under both Title IX and SaVE, colleges must have procedures that include: notice of the right to file a criminal complaint and internal complaint, and notice of the right to decline to notify police or campus authorities.

It also requires "remedies and sanctions," and Butwin said ISU is developing a range of sanctions that include possible suspension or expulsion.

ISU does have a Title IX coordinator who investigates complaints.

Victims can choose to pursue options in which their confidentiality is maintained if they do not want a case investigated, either by police or the campus Title IX coordinator, she said.

Trustee Dave Campbell asked where the institutional process intersects with the criminal justice process.

While the criminal process should be available to students, "this requires us to have an institutional process," Butwin said. The goal is empowering students who are victims of sexual violence and giving them options. That might mean they pursue the criminal process, institutional process, one of those options, both of those options or neither.

In Indiana, if a victim does not want a sexual assault reported to law enforcement, colleges do not have a legal requirement to report it, Butwin said. Indiana does not have mandatory reporting, as some states do.

But ISU would have to include such purposely unreported case in its crime statistics.

As far as all of the new regulations, Butwin suggested "there may be some overcorrecting that's happening" because federal officials "recognized there was a problem that was not being addressed. I think there were some very high profile situations across the country."

She told trustees, "It will settle over time."

ISU President Dan Bradley said he hopes to focus on prevention measures to minimize incidents from occurring. Butwin outlined several prevention activities already occurring, with more planned.

The goal is to present the revised, updated policies and procedures to the board of trustees at its June meeting, Butwin said. It also will be reviewed by student government, staff council and the Faculty Senate.