Teaching colleges how to handle sexual-misconduct cases

Gina Maisto Smith (left) and Leslie Gomez spend much of their time assisting colleges. AKIRA SUWA / Staff Photographer
Gina Maisto Smith (left) and Leslie Gomez spend much of their time assisting colleges. AKIRA SUWA / Staff Photographer (Ballard Spahr's)
Posted: April 09, 2012

The 19-page letter from the U.S. Department of Education to colleges and universities across the nation last April made already-busy Philadelphia lawyer Gina Maisto Smith even busier.

The letter emphasized that colleges had to respond to any complaint of sexual misconduct, even if the victim didn't want to press charges or otherwise pursue it. Some colleges hadn't been investigating such complaints even though a 2001 Education Department document recommended it, said Smith, a former sex-crimes prosecutor who now specializes in law involving sexual misconduct on college campuses and other institutions.

"This really caused a stir nationally," said Smith, a partner at the Ballard Spahr firm. "When a complainant requests confidentiality, you may go along with that, but you can't just shut it down. You have to at least look to see how serious the event was, whether there is a pattern of behavior, the age of the complainant, and the right of the accused to be able to respond to what a complainant is saying."

From Massachusetts to Florida to Texas to Washington state, calls from universities began rolling in.

"I got busier and busier," Smith said.

Now, Smith and law partner Leslie Gomez - who once worked together in the Philadelphia District Attorney's Office - find themselves in high demand.

They are crisscrossing the nation, training college employees how to properly respond to sexual misconduct, auditing and rewriting their policies, and in some cases conducting sexual-misconduct investigations for the schools. They are regulars at national conferences focusing on campus sexual assault.

Colleges and K-12 schools that receive federal funding have steps they must take, including publishing a nondiscrimination policy and offering clear grievance procedures. Federal law prohibits sexual harassment, including sexual violence.

Smith and Gomez spend at least 50 percent of their time assisting colleges, they said.

That's on top of running a high-profile investigation into sexual-abuse allegations against priests in the Archdiocese of Philadelphia. The archdiocese tapped Smith more than a year ago to lead the inquiry. Gomez joined her when the firm hired her in September.

This is a particularly vexing time for higher education. In the last year, high-profile cases with sexual overtones have stunned campuses, most notably the child sexual-abuse scandal at Pennsylvania State University but also others, such as the webcam spying case at Rutgers University.

"The occurrence at Penn State has upped the national conversation around these important issues," Smith said.

The Department of Education in the last year also has been more stringently enforcing regulations in several areas, including sexual assault, said Peter Lake, professor of law and director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida.

"Many of us have seen it coming, and we've been trying to warn the field," said Lake, who chairs a national conference on law and higher-education policy. "People want more accountability."

Smith and Gomez offer years of experience in dealing with such sensitive issues, he said.

"Their biggest challenge right now is there isn't enough of them to go around," Lake said.

Universities in other countries are likely to come knocking next, he said.

Colleges more than in the past really are trying to comply with the law, which makes advice from professionals such as Smith and Gomez vital, said Alison Kiss, executive director of Security on Campus.

"Campuses need that technical assistance," she said.

Responding quickly to a report of a sexual assault is crucial, even if the victim says he or she doesn't want to press charges, Smith said.

If a school hesitates, "opportunities are lost to gather evidence while it's fresh. And when the victim changes his or her mind down the road . . . the institutional lack of response then may be viewed by outsiders as a cover-up."

Even word-against-word cases must be aggressively investigated, she said. Prosecutors can pass on cases they view as weak. Colleges don't have that leeway.

The letter "brought into precise focus that schools must respond to every allegation," Smith said.

Even if prosecutors pursue the case, colleges must conduct their own investigations.

"They can't just punt to law enforcement," she said.

Smith began working with colleges when she joined Ballard Spahr in 2006.

She went to the firm with nearly two decades of experience as a sex-crimes prosecutor in her role as an assistant district attorney in Philadelphia. She handled myriad sexual-misconduct cases, some on college campuses including Drexel, La Salle, and the University of Pennsylvania.

At Ballard Spahr, she took on a case involving a college and saw that higher-education institutions were in special need of guidance in following federal laws governing the handling of sex cases.

She declined to name the college, or any universities for which she has worked, citing confidentiality.

When the practice began to pick up, she reached out to Gomez, who had an adjacent office at the District Attorney's Office for more than a decade.

Gomez had spent 14 years as an assistant district attorney, largely focusing on child-abuse cases. She most recently led the juvenile court unit. "I never wanted to be anything other than a child-abuse prosecutor," Gomez said. "But there are a lot of ways in life you can bring your own personal sense of justice to bear."

Both took their work to heart in their high-stress roles as prosecutors.

"I used to have Friday-night cries," Smith said.

"I got very numb to everything," Gomez said.

Now, they like that their work focuses on prevention.

One of the biggest problems they see on campuses is a lack of communication among departments. During their training sessions, they bring department representatives together to begin to break down those barriers, they said.

"Our role is to get them working like a well-oiled machine and not at odds with each other," Smith said.

With some colleges, they spend a couple of days. With others, it's longer.

"A number of other schools want to rewrite their policies," Gomez said. "That's a longer-term, ongoing relationship."

They're hoping that eventually their work will be limited to investigations because schools will be well-trained. "Our goal," Smith said, "is to make this practice obsolete. If that's true, we've succeeded in our message of training and prevention."


Contact Susan Snyder at 215-854-4693, ssnyder@phillynews.com, or follow @ssnyderinq on Twitter.

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