Adaptable resolution introduced as an option in sexual misconduct cases

Tuesday, January 29, 2019 - 4:29pm

 

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Design by Jack Silberman

The University of Michigan’s new interim student sexual misconduct policy expands the use of additional options and support for students who may not want to pursue a hearing and investigation. The pathway, called adaptable resolution, was outlined in the December 2018 revisions, which took effect Jan. 9.

The new Interim Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence was also updated to include an in-person hearing. During the investigation process both the accused and the accuser will be able to cross-examine each other and the witnesses.

This revision was implemented in accordance with the September U.S. Court of Appeals for the Sixth Circuit ruling that public universities must give the accused student or their adviser the opportunity to cross-examine the accuser and witnesses. The University petitioned for a rehearing in late September. The circuit court denied the petition in October of 2018.

Under the interim policy, students wishing to resolve cases of sexual misconduct have two options: traditional investigative resolution, which involves now an in-person hearing, or adaptable resolution. An adaptable resolution must be voluntary on part of both the claimant and the respondent and must be approved by the Title IX coordinator. If the case is successfully resolved, the respondent does not incur a disciplinary record.

In an email to the Daily, Erik Wessel, director of the Office of Student Conflict Resolution, explained how contrary to longstanding misperceptions, adaptable resolution is not the same as mediation.

“In fact, what is now described as adaptable resolution (formerly alternative resolution) is both a philosophical framing which seeks to hold accountable those creating harm and support the process for repairing harm and a spectrum of voluntary resolution options that are focused on meeting needs and repairing harm,” Wessel wrote.

Adaptable resolution has been available under the SSMP since the August 2013 iteration of the policy, but it has been referred to in policies prior to 2019 as “alternative resolution” and “informal resolution”. One goal of the 2019 interim policy is to establish the title of the resolution as “adaptable resolution”.

According to Wessel, the 2019 interim policy also seeks to more explicitly describe the types of options available under adaptable resolution. These options, which have remained the same since 2013, include various mediation methods with a trained adaptable resolution coordinator.

Facilitated dialogues and restorative circles are facilitated in-person conversations between those involved in which parties share their perspective and work toward a shared agreement. Alternatively, shuttle negotiation does not require direct interaction between parties; instead, parties negotiate an agreement by meeting individually with the coordinator. The circle of accountability focuses on support and education of the respondent when the respondent has assumed responsibility for repairing harm and does not require the participation of the claimant.

The new 2019 interim policy is the latest in a series of revisions. The 2013 policy originally prohibited the use of adaptable resolution, then called informal resolution, in any sexual assault cases. Informal resolution was first broadened by the 2016 policy, which used the term alternative resolution and specifically barred mediation in any sexual assault case.

Adaptable resolution was further revised in the February 2018 SSMP, which only prohibited use of mediation in respect to penetrative sexual assault. The newest January 2019 iteration fully expanded the pathway, allowing for the use of any adaptable resolution method on any sexual misconduct case, regardless of the nature of conflict alleged.

Public Policy senior Allison Berry is a Sexual Assault Prevention and Awareness Center volunteer who studies sexual violence prevention policy. According to Berry, the expansion of adaptable resolution is a positive change, as it offers more options to survivors.

“I think (adaptable resolution) allows the opportunity for the survivor to ask for what they need,” Berry said. “It shows that the University wants to provide claimants with the resources and the support that they want. … It’s opening the door for all different kinds of survivors who have unique needs to have their needs met by the University.”

Similarly, Engineering senior Courtney Burns, a SAPAC volunteer and Sexperteam education chair, said adaptable resolutions could empower survivors in ways investigative resolutions sometimes cannot.

“The adaptable resolution process allows the survivor to have more agency to decide how they want their case resolved,” Burns said. “It is a welcome step forward in the process of enabling survivors of sexual violence to feel empowered. A lot of the adaptable resolution pathway is enabling a conversation between the claimant and the respondent where the respondent learns and assumes responsibility for their actions. … That can provide a form of closure that the investigative process perhaps cannot as oftentimes those processes are not successful in the claimant’s favor.”

By providing more resolution options, University President Mark Schlissel said in an interview with The Daily earlier this month that the University hopes more students will be encouraged to report sexual misconduct.

“The hope is by providing the second pathway, students who did not want to come forward and expose themselves to a hearing might come forward and say, ‘Yeah, I’d like to consider this other way of getting justice here,’ a more negotiated way to get justice,” Schlissel said. “By offering that as an option, we’ll get more students to step forward and ask for help.”

According to Kaaren Williamsen in an email to The Daily, director of SAPAC, revisions of the policy were motivated by student feedback.

“Student requests for adaptable resolution also influenced the expansion of the policy,” Williamsen wrote. “We know that not all survivors want to initiate an investigation and adjudication process, but do want some assistance in addressing what happened to them. The policy now allows for more survivors to request assistance and intervention beyond an investigation and hearing.”

Since its implementation in 2013, adaptable resolution has only been used in two cases out of the 580 total cases from July 2013 to June 2018 deemed to fall under the scope of the SSMP. According to KC Johnson, Brooklyn College history professor, one reason behind this statistic may be bureaucratic.

“Certainly you can infer from those figures that Title IX bureaucracy at Michigan is not encouraging students to pursue this alternative pathway,” Johnson said. “And then the other question is, how much this is disseminated on campus? Students do not pursue (adaptable resolution) if they do not know it exists.”

Burns also testified to a general need for more education of sexual misconduct awareness and of University sexual misconduct policy.

“I think the general student body isn’t particularly well-equipped with the knowledge of what it would look like after a sexual violence case is reported to the University,” Burns said. “Every student goes through Relationship Remix when they arrive at the University. However, when they’re off-campus, it becomes more challenging to keep administering dosages of sexual violence prevention and resolution education.”

Burns explained more work needs to be done, particularly at the College of Engineering.

“As an engineering student, most of my professors either don’t know what SAPAC is or are not trauma-informed if a survivor were to come forward,” Burns said. “SAPAC doesn’t have a big presence on North Campus.”

Johnson said to his knowledge, no other schools have implemented an adaptable resolution policy as comprehensive and formalized as the University’s.

“It’s particularly positive that (a policy like adaptable resolution) is coming from Michigan because it’s a high-profile institution,” Johnson said. “If the program succeeds at Michigan, it could be a model for lots of other institutions. It has potential. Maybe it will just fizzle out if no students will use it … But if the University finds a way to channel students into this, the literature on restorative justice suggests that for some students, this is the best option.”

In response to Johnson’s claim that the University may be taking the lead on using alternative methods in dealing with sexual misconduct, Wessel reaffirmed the University’s core purpose as a place of education.

“The University of Michigan is indeed at the forefront in providing fair, just, equitable and adaptable resolution options for our community,” Wessel wrote. “Indeed, we are educators — and this is how we support our community while fulfilling both missions of education and compliance.”

Wessel also said many students may still not be aware of the new policy and explained the University is always looking for community input.

“Although the policy change has been communicated to the community, we understand that many would not have read through the nuance of the policy,” Wessel said. “That said, it should be noted that the policy was intentionally implemented as an interim policy to comply with the ruling of the Sixth Circuit. We will be engaging the University community as we seek to draft a finalized policy in the coming months. A process for seeking community input is currently in development and will begin to roll out in February and March.”