From the Daily: Clear, unambiguous action required

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BY THE MICHIGAN DAILY

Published April 8, 2015

Editor’s note: Emily Campbell, one of the subjects of this piece, is a copy editor at The Michigan Daily. Campbell was not involved in the editing process of this editorial or the Daily’s special report.

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In a phone interview with University spokesman Rick Fitzgerald on Tuesday afternoon, the Daily requested specific information about the sexual misconduct investigation process in order to clarify several aspects of a news report published in today’s edition of the paper. On behalf of the University, Fitzgerald declined to comment and said the Student Sexual Misconduct Policy would suffice in answering the Daily’s questions.

In February 2014, the Department of Education’s Office of Civil Rights announced it would investigate the University for violations of Title IX legislation. In response to the investigation, the University issued the following statement: “We’re very proud of our student sexual misconduct policy, our prevention efforts and our programs to support survivors of sexual misconduct … we believe that a review of our policy, programs and investigations will conclude that the University of Michigan is doing what it should in this important area.”

While the University claims it is doing “what it should” to support survivors of sexual misconduct, after reviewing documents and University policies, it is undeniable that the University’s sexual assault adjudication and education processes contain significant policy faults that cannot be ignored.

First, the University’s sexual misconduct investigations function in a manner that brings their equitability into question. Second, there are discrepancies between the Sexual Assault Prevention and Awareness Center’s definition of consent and that of University policy it determines cases on, which raises concerns about the educational materials promoted by the University. In light of this specific case and the larger Title IX investigation, the University is left with one choice: It must change its sexual misconduct investigation policies and formulate better sexual education programs for its students. To persist with the current policies would only further discredit the University’s sincerity in combating sexual assault on campus.

In December 2013, LSA sophomore Emily Campbell alleged that she was involved in unwanted sexual contact with then-LSA-freshmen Aaron Reuben and Jonathan Barnet. Campbell reported the incident to SAPAC, which referred her to a University hospital sexual assault nurse examiner, or SANE. A University Police Department investigation was automatically initiated. Information from this investigation was brought to the Office of Institutional Equity, where an adjudication process commenced. OIE found Reuben and Barnet in violation of University policy for disseminating electronic images of Campbell during the event without her knowledge, but did not find them responsible for unwanted sexual contact. Reuben and Barnet were suspended from the University for one year and will be allowed to return to campus in January 2016, pending the fulfillment of probationary stipulations.

Part One: Equitability of the process

The University has a right to conduct its misconduct investigations independently. However, OIE investigative proceedings must be altered to include safeguards that increase the equitability of the process and allow individuals a more just opportunity to file, pursue and defend any claims made by or against them.

The Student Sexual Misconduct Policy explicitly states that both respondents and complainants “may bring a support person or adviser with them to any meetings with the Investigator” handling the OIE investigation. However, there is no specific policy in existence governing whether complainants are advised to seek legal counsel, and Fitzgerald declined to elaborate further as to what standard procedure entails. Both Reuben and Barnet retained high-quality legal representation at the onset of the process, while Campbell did not retain attorney services until she decided to press civil charges 11 months later.

Leaving the decision to retain counsel up to students who are involved with a stressful and likely emotionally damaging investigation could lead to a situation where ill-equipped individuals are pitted against experienced attorneys using experts to discredit and counter their claims. A system that provides guaranteed representation for all individuals involved with an OIE investigation must be created to ensure equitability.

In addition to the retention of legal representation, paid expert testimony and analysis is allowed in the OIE investigation process. The OIE investigator in charge of the case consulted various experts for the investigation, including the SANE who examined Campbell and a University psychologist with post-traumatic stress disorder expertise. In response to these University-obtained testimonies, Reuben’s attorneys paid and consulted experts regarding the SANE examination, memory formation and PTSD to directly contradict the informed opinions of University employees. The allowance of this testimony is concerning. To maintain a standard of review, it is crucial that the opinions considered do not harbor a vested interest in the outcome of any contended issue, as is the case with paid expert opinions.

OIE investigations include an appeals process that allows new, “appropriate and probative” material to be introduced after an appeal has been filed. This is entirely contradictory to the purpose of an appeal. An appeal is a review of an original decision to determine whether a “harmful legal error has occurred”; it is not intended to “give a litigant a second opportunity to reargue the facts of his or her case.” Complainants and respondents are allowed to submit objections to materials during the appeals process, which are considered and ruled upon by OIE staff. Permitting additional documents to be submitted during an appeal only muddles the factual findings of the University’s investigation and unnecessarily complicates and elongates the process.

Furthermore, the policies governing students and their actions bear few definitive thresholds for punishment. The University only provides a list of potential sanctions, meaning very few violations of policy result directly in a specifically defined punishment being levied against violator(s). Alarmingly, academic standing policy is more concrete in its language and punishments than sexual assault policies. Leaving punishments undefined limits the ability of University policy to inhibit unwanted behavior.

Punishments aren’t just undefined. They are, as in Campbell’s case, mercurial. E. Royster Harper, vice president of student life, after reviewing the materials from the OIE investigation and suggested sanctioning from the appeals process, wrote in a Dec. 17, 2014 memo addressed to Stacey Vander Velde, associate director of the Office of Student Conflict Resolution, that she had “chosen to modify the sanctioning recommendations” by extending the suspension period levied against Reuben; he will not be allowed to return to the University until January 2016. This was done without explanation or rationalization by Harper or her office, which further raises questions about the transparency of the process.

Reworking the OIE investigation system is essential because it will benefit both the University and students, leading to a more equitable process and definitive outcome.

Part Two: Consent definition and sexual education

According to its website, SAPAC, the main campus provider of sexual education, defines consent as “when someone verbally agrees, gives permission, or says ‘yes’ to sexual activity with someone else.” However, the Student Sexual Misconduct Policy defines consent with less detailed description. It states that consent is “clear and unambiguous agreement, expressed in mutually understandable words or actions, to engage in a particular activity,” with the key issue being “whether the Respondent knew, or should have known, that the activity in question was not consensual.” Because of the University’s official policy, Reuben and Barnet were found not guilty of unwanted sexual contact during the encounter with Campbell. While we understand that SAPAC’s definition of consent is educational and not a standard used to hold individuals accountable to University policy, the large discrepancy between the two is troubling; “mutually understandable words or actions” is too ambiguous. The current policy sets a dangerously low threshold for consent that can be misconstrued and misunderstood.

To remedy these ambiguities, the policy should clearly state that silence and inaction are not acceptable and do not, under any circumstances, constitute consent. In an interview with The Michigan Daily, Barbara Niess-May, executive director of SafeHouse Center, further elaborated on the topic of consent. “It’s active, not passive,” Niess-May said. “Cooperation does not equal consent.”

According to the American Psychological Association, immediate reactions to sexual assault include shock, disbelief and fear. While the lack of a response, as a result of these reactions, can cause confusion for involved parties, misunderstanding is not a viable excuse for sexual misconduct. The University’s policy must take into account the very real, biological reactions individuals may experience during a traumatic event.

Beyond the pitfalls in the policy itself, sexual education on campus is minimal, at best. Currently, the University administers sexual education to incoming students indirectly through AlcoholEdu and directly through Relationship Remix. However, completion of these programs is not strictly enforced, and neither of the programs detail the University’s sexual misconduct policy nor the investigative process. These programs are not rigorous enough educational tools because, even if enforced, such brief sessions can’t cover all of the material necessary for an adequate understanding of sexual misconduct.

Therefore, the University must provide SAPAC with more resources to expand its educational programs for students. For students, a more thorough and prolonged curriculum should be taught to provide a comprehensive and continual education. A mini-course should be mandated for freshmen during their first semester aimed at clarifying all policies and punishments regarding sexual misconduct. In addition, online refreshers should be mandated before class registration each academic year to provide updated information regarding sexual misconduct resources and policy.

That said, it would be unfair to claim the University is completely uncommitted to changing campus culture and policies. University President Mark Schlissel has announced a student survey on sexual assault to gather information, UMPD has formed a sexual assault special victims unit focused on sexual misconduct and SAPAC is currently hosting round tables to provide feedback on the sexual misconduct policy. While these steps will improve awareness, gather information and better train UMPD officers — all critical to tackling sexual misconduct — they do not adequately address the issues that currently exist within the system, the policy and how information is disseminated on campus.

The University must own up to its faults and make integral changes to its OIE investigation process, sexual misconduct policy and education programs. Further inaction in this regard cannot be tolerated.