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ASU updates procedural policies for sexual assault hearings, per DOE ask

The University is now required to notify all parties of final determinations simultaneously and with written rationale

091417 ASUsign.jpg

Students ride past a sign with the ASU charter on the Tempe campus on Thursday, Sept. 14, 2017. 

The University sent the Department of Education, current students and employees an updated and revised version of the 2020 Annual Security Report Friday afternoon. The changes come after the DOE reviewed a complaint from a student involving an alleged on-campus rape and found ASU in violation of federal campus safety laws under the Clery Act. 

After the DOE sent a letter in April asking ASU to clarify items of practice, the University updated two main procedural items in its Clery Report, according to its remediation response sent to the DOE Friday. The updated items were how the school notified all parties of a final determination and the level of detail and reasoning provided in final determination letters.

Katie Paquet, a University spokesperson, previously told The State Press ASU had delivered determinations of disciplinary hearings in person "to provide real-time support to involved students." The school permitted each party to review in detail the investigative report file that the determination was based on without reiterating it in the determination letter.  

Language in the 2020 Annual Security Report, an annual document distributed to current students and employees including statistics of campus crime and efforts taken to improve campus safety, now reflects how the University will notify all parties at the same time of conclusions in disciplinary investigations. Those letters will include a more detailed rationale, explaining why and how the University came to that certain conclusion. 

READ MORE: DOE finds ASU in violation of Clery Act

Over the past two months, the University has been in contact with the DOE on the two central items it was asked to change as well as other conclusions of the April letter. The initial conclusions said the University was to reevaluate all of its campus safety policies and procedures; the next ASR is not expected until October of this year. Paquet said the University "continuously" evaluates and updates systems and policies.

In addition, the University will not require any party or their advisors to sign a non-disclosure agreement as a condition to receiving any information they are privy to under the Clery Act. 

The complaint, filed in June 2020, said ASU had the complainant sign an NDA in order to receive a copy of the investigative report into the sexual assault. In the April letter, DOE said ASU could not place any conditions, including the execution of an NDA, on a victim of an alleged sexual assault or their advisor. DOE later walked back that finding after ASU adequately explained it was within the bounds of federal law.  

According to the letter ASU's associate general counsel sent to the DOE Friday, which was obtained by The State Press, "The only instance in which ASU requires parties to execute a non-disclosure agreement is if they wish to obtain a copy of the investigative file, rather than reviewing the copy in the university's possession."

The general counsel explained the purpose of such agreement exists to protect confidential information from being used for anything other than the disciplinary process. According to the letter, nothing in the Clery Act prohibits the use of an NDA in connection with the access of the investigative file, something which was acknowledged in a meeting between ASU and the DOE in April.

Revisions also include how those who report an incident of sexual violence will now be given written communication of their rights, available accommodations and protective measures. Written communication will also be provided explaining what procedures govern the disciplinary process, which may include the intake of allegations and other investigatory practices. 

Students were notified of revisions to the ASR in an email from ASU's executive vice president, Morgan Olsen, Friday afternoon. In it, he wrote "ASU continues to make progress each year as we battle complex social problems such as sexual assault, sexual harassment, and drug and alcohol abuse."

According to the email from Olsen, sent to "ASU community stakeholders," final determinations of conduct cases covered by the Clery Act will include "information explaining the outcome reached, a clear and detailed rationale for the determination, clear information on any sanctions imposed if the respondent is found responsible, and clear information about the right of the parties to appeal."

The alleged sexual assault, which was reported in February 2020, did not trigger a timely warning, which is normally sent to all students and faculty if there is an imminent threat on campus. ASU explained in conversations with DOE, Paquet said, that no timely warning was issued because ASU police deemed the assault as non-imminent. Therefore, ASU followed the Clery Act and no further action was required by the DOE.

Janet Pearlman, the campus crime compliance specialist at DOE, did not respond to emailed questions about the timeline of events and the initial April letter.

READ MORE: ASU's sexual assault investigation processes leave survivors traumatized, often without justice

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Piper HansenDigital Editor-in-Chief

Piper Hansen is the digital editor-in-chief at The State Press, overseeing all digital content. Joining SP in Spring 2020, she has covered student government, housing and COVID-19. She has previously written about state politics for The Arizona Republic and the Arizona Capitol Times and covers social justice for Cronkite News.

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