Policing The Police: The DOJ's Agreement With The University Of Montana's Office Of Public Safety

Article by K. Lorraine Lord, Melissa W. Nelson and Jesh Humphrey, Deputy General Counsel at the University of North Carolina at Charlotte.1

INTRODUCTION:

On May 9, 2013, the University of Montana (the "University") entered into two agreements with the United States government regarding the University's handling of allegations of sexual assault and harassment at its Missoula campus. The first agreement (the "Montana Agreement") was reached following a joint investigation by the U.S. Department of Justice Civil Rights Division and the U.S. Department of Education's Office for Civil Rights ("OCR"). This agreement is the subject of a NACUANOTE published on June 14, 2013.2 In compliance with the Montana Agreement, the University recently published its revised sexual harassment policy.3

The second agreement was reached between the Department of Justice's Special Litigation Section ("DOJ") and the University's Office of Public Safety ("OPS") following an investigation into allegations that OPS discriminated against women in responding to reports of sexual assault (the "OPS Agreement").4 This NACUANOTE discusses DOJ's letter to the University outlining the OPS investigation's findings (the "OPS Letter") and the OPS Agreement, and it offers practical suggestions for meeting DOJ's apparent expectations regarding first response to complaints of sexual assault occurring on campus.5

DOJ has referred to the investigations, the consequent findings and the ultimate agreements reached with the University as an "exemplar,"6 "a model,"7 and a "blueprint"8 for other universities. However, neither the OPS Agreement nor the Montana Agreement is binding on other institutions, and the investigations were driven by circumstances specific to the University.9

The OPS investigation appears to be the first DOJ investigation of any campus police department, and accordingly, the OPS Letter and OPS Agreement (the "OPS Documents") discussed in this NACUANOTE provide the first available insight into DOJ's view of how campus police departments should respond to reports of sexual assault.10

DISCUSSION:

1. The OPS Investigation

   DOJ and OCR began a joint investigation in 2012 to determine whether the University had "the necessary systems in place to respond promptly and effectively to allegations of sexual assault and harassment on campus" and whether it had "taken the necessary steps to combat and prevent sexual violence and sexual harassment across the University campus."11 OPS provides policing services to the University community.12 Under OPS's Memorandum of Understanding with the Missoula Police Department ("MPD"), OPS acts as the first responder to reports of on-campus sexual assault.13 OPS refers complaints involving felony sexual assault to the MPD for investigation, but retains jurisdiction to investigate misdemeanor sexual assault.14

   The University initially opened an investigation of OPS prompted by reports that the University and local law enforcement were not adequately responding to reports of sexual assault both on campus and elsewhere in Missoula.15 In 2010, the University's Student Assault Resource Center received 32 reports of alleged rape. However, according to OPS's reporting, there were only six reported forcible rapes on campus in 2009 and five reported sexual assaults in 2010, including two reports of forcible rape.16 Additionally, OPS's public reporting indicated that no non-forcible rapes had been reported on campus in 2009 or 2010, despite research showing that a majority of rapes occurring on college campuses are committed by persons known to the victim and do not result in physical injury.17 In 2011, two alleged incidents of sexual assault against University women athletes occurred during a two-month period. The University hired retired Montana Supreme Court Justice Diane Barz to conduct an independent investigation, and her report identified nine sexual assaults against University students between September 2010 and December 2011, some of which had not been reported to the University. According to DOJ, Justice Barz's report revealed a lack of communication between the different responders to sexual assault in Missoula.18

   A month after Justice Barz's report was released, two more women at the University reported that they had been sexually assaulted by the same student on the same day. Local law enforcement did not learn of the assaults until a week had passed, and the alleged assailant was able to flee the country.19 DOJ opened its investigation in the wake of Justice Barz's report, the assaults that followed, and widespread community concern that communication failures between the University and local law enforcement were contributing to an ongoing pattern of sexual violence.

   The DOJ investigation assessed compliance with two federal statutes - the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA")20 and the Omnibus Crime Control and Safe Streets Act of 1968 (the "Safe Streets Act")21 - as well as the regulations implementing the Safe Streets Act22 and the Fourteenth Amendment to the United States Constitution.23 Because DOJ's jurisdiction is limited by statute to sworn officers,24 the OPS Letter and OPS Agreement - and, accordingly, the analysis in this NACUANOTE - do not address counselors and others who may act as first responders.25

   In addition to the OPS investigation, DOJ simultaneously investigated the MPD and the Missoula County Attorney's Office regarding their response to sexual assault reports.26 The police department investigation resulted in a separate Memorandum of Understanding dated May 19, 2013.

2. DOJ Findings and Resolutions

   1. Findings

      As a result of the investigation, DOJ concluded that OPS does not "adequately respond[] to reports of on-campus sexual assault" and "that[its] response to sexual assaults is compromised by deficiencies in policy, training and practice."27 DOJ also concluded that OPS's deficient response "hinders" and "compromise[s]" the University's investigation from the outset; "undermines law enforcement's ability to . . . determine the facts;" results in inadequate protection of female sexual assault victims; interferes with the collection of necessary information; interferes with the protection of others in the community; and makes it more likely that OPS officers might rely on gender-based assumptions and stereotypes.28

      DOJ found that OPS lacked policies or procedures with respect to sexual assault response outside the context of domestic violence.29 Prior to the OPS investigation, OPS officers had received no training in conducting interviews of victims, witnesses, or suspects in the sexual assault context, and DOJ found that training conducted during the OPS investigation did not provide adequate guidance on drug- and alcohol-facilitated sexual assault.30 DOJ also found that OPS officers' initial interviews of victims reporting sexual assault were sometimes deficient to the extent they might discourage victims from reporting sexual assault or participating in law enforcement investigations.31 The OPS officers also appeared to be unaware of on- and off-campus resources to assist victims of sexual assault.32

      DOJ determined these deficiencies have an "unjustified disparate impact on women" in violation of the Safe Streets Act and reflect sex-based stereotypes, thus constituting discrimination in violation of the Fourteenth Amendment.33 As a result, DOJ concluded that "women victims of sexual assault were being denied fair and equal access to the criminal justice system, including by being discouraged from reporting sexual assaults to law enforcement."34

      DOJ deemed OPS's failure to have policies in place governing its response to reports of sexual assault - in light of the prevalence of sexual assault and the existence of OPS policies for other investigations - as evidence of gender-based discrimination.35

   2. Resolutions in the OPS Agreement

      In the OPS Agreement, the University agreed to sweeping changes to its OPS policies, training and practices. It also agreed to submit to oversight by a third-party "Independent Reviewer" of its efforts to improve OPS's response to sexual assault and to ensure gender bias does not influence that response.36

      Victim-Centered Response

      To address the...