From the Daily: A better policy, please

Wednesday, January 20, 2016 - 11:13pm

The Office of Institutional Equity released its second Student Sexual Misconduct Annual Report, showing a 33-percent increase in reported cases of sexual misconduct from 2014 to 2015, on Thursday. In the 2014 reporting period, 129 cases were reported, whereas in 2015 there were 172 cases reported. This increase in reports is the result of a multitude of factors, including increased media attention on the topic of sexual misconduct nationwide and on campus in the past several years. This increase is not where we should direct our most critical attention, however. What’s most concerning about the statistics in the report is the decrease in the percentage of reported cases investigated by the Office of Institutional Equity, which is the result of the inadequacy of the University’s current Sexual Misconduct Policy.

 

A brief summary of the reporting process through OIE is warranted: Sexual misconduct under the current policy includes both sexual assault and sexual harassment. All reports of sexual misconduct are first reviewed by the University’s Title IX coordinator, who determines whether a given case is a potential violation of the Sexual Misconduct Policy. If a case is in potential violation of the policy, the Title IX coordinator sends it to a review panel made up of various representatives. The panel then decides whether each case warrants an investigation. The investigation would ultimately determine whether the reported case of sexual misconduct is indeed a policy infraction.

 

While the report acknowledges that there has been an increase in the number of cases reported, it is misleading when it states “the number of investigations remained the same.” While it is true that in both 2014 and 2015 there were 29 cases brought under official investigation by OIE, 29 cases amounts to 22 percent of cases reported in 2014 and just 17 percent of cases reported in 2015. This means that despite the 25-percent increase in cases reported, we have seen a 5-percent decrease in the number of cases actually investigated by the University.

 

This is concerning because data from the Campus Climate Survey shows that sexual assault is much more prevalent than the number of cases reported shows. Many students are sexually assaulted, but do not report the incident or do not wish to follow through with an investigation. There is a huge discrepancy between the prevalence of sexual assault and the number of cases being investigated by the University. What can explain this gap?

 

OIE conducts its investigations based on the current Sexual Misconduct Policy and the evidence the complainant provides. The current standard seems to be too weak to properly identify situations in which sexual assault has occurred, relying on how the available evidence interacts with the policy. If there is enough evidence to support that sexual misconduct occurred within the definitions of the policy, then the reported instance is considered an infraction. If there is not enough evidence to support it, then, according to the policy, no violation occurred.

 

In an ideal world, the sexual misconduct policy would always reprimand sexual misconduct where it is due. But statistics in this report clearly show this is not the case — especially regarding instances of sexual assault, which made up 25 of 29 cases investigated. Of these, OIE just found seven cases to be in violation of the policy. You read that right. In 2015, the University only issued sanctions to seven perpetrators of sexual assault, barely an improvement from last year’s five.

 

The current Sexual Misconduct Policy is not doing its job. Two terms are of utmost importance when discussing the effectiveness of a sexual misconduct policy in bringing cases of sexual assault to justice: consent and incapacitation. Consent in the current policy is defined as “clear and unambiguous agreement, expressed in mutually understandable words or actions, to engage in a particular activity.” The policy goes on to say that a person cannot give consent if they are incapacitated, incapacitation being defined as “lacking the physical and/or mental ability to make informed, rational judgments.” According to the policy, this inability to make rational, informed judgments could include “being asleep or unconscious, having consumed alcohol or taken drugs, or experiencing blackouts or flashbacks.”

 

Both of these definitions are inadequate. Who is to determine what is “clear” or “unambiguous” agreement? Who is to determine whether these signs were “mutually understandable?” What does it mean to make “informed, rational judgments”? The current policy’s definitions of consent and incapacitation are entirely too subjective and must be improved.

 

This fall, OIE released a draft of a Revised Student Sexual Misconduct Policy. Breaking sexual misconduct into six subcategories all under the umbrella of “Prohibited Conduct,” the draft adds that consent cannot be inferred from silence, or an existing or previous sexual or dating relationship, while also elaborating that consent with one person doesn’t constitute consent with anyone else and that consent can be withdrawn at any time. While these are improvements, the draft still maintains the subjective language of “clear” and “unambiguous” agreement as grounds for consent. The changes the draft makes to the definition of incapacitation are negligible, leaving it just as subjective as the current policy.

 

If OIE considers defendants in cases of alleged sexual assault to be innocent until proven guilty, the subjective nature of definitions of consent and incapacitation make it virtually impossible to prove the defendant committed sexual assault. An adequate sexual misconduct policy, which the University claims to be releasing soon, should define consent and incapacitation in much less subjective terms. Only then can we expect the percentage of reported cases investigated to increase, and only then can we expect the University to reprimand more than seven cases of sexual assault per year. In response to this report, we reiterate the call to action we made nine months ago: Clear, unambiguous action is required.