From the Daily: Standards significantly raised

Wednesday, April 6, 2016 - 11:48pm

The University of Michigan’s new sexual misconduct policy, now called the University of Michigan Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence, is drastically more expansive than its 2013 predecessor, and even its pre-released September 2015 draft. The policy gives the University more precise tools for determining what exactly sexual misconduct is in questionable circumstances, investigators the tools to convict perpetrators who may have slid by under the old policy and the campus community at large the tools to understand the intricacies of consent and incapacitation in nuanced situations. This new policy favors the claimant in numerous ways and will likely increase the number of assaults punished, thereby raising the standards around sexual activity and changing the culture around sexual assault on our campus. It also represents significant steps forward in several areas, but will require noticeable efforts by the University to align the rightfully strict standards in the policy with societal standards about gender and sex. 

In contrast to the previous policy, the new one clearly outlines the full process of reporting a sexual misconduct case to the University, uses gender-inclusive language and expands the scope of its definitions of consent and incapacitation. It also changes the role of witnesses and of the review panel and appeals process, as well as brings intimate partner violence and stalking underneath the scope of this singular policy and process.

The new policy is also vastly more transparent and organized about the process a student will embark on when they report a case of sexual misconduct. Significantly, it notes the distinction between the two different justice systems a student can report a case to: the University and/or the police. Though under the old policy, students were advised to report to the University's Police Department in addition to filing a report to the University, the new policy explains that reporting to the police is a completely separate process than the one students will undergo at the University. Additionally, the policy offers resources — including specific phone numbers — for students to use to contact of variety of police forces.

While the Department of Education — which is currently investigating several Title IX complaints — and countless student activists believe the University has a responsibility to investigate and punish students for sexual misconduct, there is a national debate over whether universities are not equipped to investigate cases of sexual misconduct. Regardless of whether one believes the University should legislate these cases, the fact that the two processes are explained in a clear and detailed manner helps better educate our student body and aids in making options for students more clear.

Last April, the Daily brought to light the University’s inadequate definition of consent, noting it did not specify that silence and inaction did not equate to consent. The new policy specifically states, “Consent is not to be inferred from silence, passivity, or a lack of resistance,” also adding that “non-verbal communication” is not consent. This crucial change will raise the standard for consent. A respondent can no longer claim they had consent because the other party didn’t actively resist. Along similar lines, this new policy explicitly defines what constitutes coercion and force, both of which would render one unable to give consent.

Another significant change to the definition of consent is the clarification of who is held responsible for obtaining consent. Unlike the old policy, this new policy places direct responsibility on the party who “initiates a specific sexual activity” to obtain consent. This creates a distinction between respondent, initiator and claimant. This wording makes it explicitly clear that if the respondent, assuming they are the initiator, has failed to obtain consent, then that party will be found responsible. This seems likely to increase the number of respondents found responsible for misconduct.

The new policy also goes further to stress that a past sexual or dating relationship does not mean a person has automatic consent for current or future sexual activity, and that consent must be granted “each time (sexual activity occurs).” This is an important addition, as sexual assault in dating and romantic relationships does occur, and a previous relationship should not indicate that someone has consented for future sexual activity. To take this an additional step forward, the new policy unequivocally states that if a person withdraws consent (which can happen at any time) “sexual activity must cease immediately.” These additions protect the rights of all students engaging in sexual activity at all levels of engagement.

Rightly linked to the definition of consent in the new policy is the definition of “incapacitation,” which has been dramatically expanded upon. According to the new policy, a person is incapacitated if they are in “a state beyond drunkenness or intoxication” and cannot make “informed, rational judgements.” The policy also acknowledges that intoxication varies from person to person, depending on a multitude of factors including body weight, tolerance level and food consumption. By recognizing that each individual’s level of intoxication is unique and can fluctuate based on these reasons, the University is taking a commendable step to broaden the definition of intoxication so more claimants can correctly posit their incapacitation, and so all parties can accurately gauge of when someone is incapacitated. On that note, the new policy also explicitly reminds students of state amnesty laws on drinking and extends protection against University disciplinary actions to underage students who report instances of sexual misconduct while intoxicated.

The depth at which the new policy discusses how evidence is evaluated in the University’s response process is appreciated and will also have a measurable impact on the frequency that sexual misconduct is reported. Potential complainants now have the ability to review exactly how evidence gathered during the process will be collected and evaluated, as well as by whom, and all sides have the opportunity to understand how their conduct will be evaluated by an investigation. In addition, the appeals process now includes a review by an external party, preferably one with legal expertise. Given how much discussion currently goes into making the process fair for both sides, the option of the opinion of an external reviewer on both the evaluated facts, and the process should resolve most procedural inequities. Adding greater cross-campus equity, a student appointed by the Central Student Government will now sit on the board that will determine sanctions for students found guilty, adding to the process the student voice on these important issues.

Despite the heavy lifting this new policy does to raise the standards of sexual activity, there are steps in the process that are still questionable. Witnesses will now be required to be named to all parties in an investigation. While this new addition strives to make the process more equitable, we can’t help but be concerned that witnesses will be less likely to come forward if they know they must be named given that witnesses frequently have strong relationships with either side. The detailed processes in the new policy mostly balance the rights of the complainant and the rights of the respondent; however, we feel that there is more that could be done to protect witnesses, given the sensitivity of the issues at hand and the likely personal connection between witnesses and the students in question.

In many ways this policy is the change students, student groups, administrators and a national public eye has been looking for. But it is also a double-edged sword. The standards this policy enforces will likely cause an increase in the number of respondents found responsible for misconduct, and that may cause students to experience a disconnect between the sexual standards they are taught in society versus the standards they are held to on our campus. However, though the disconnect may be large now, with the awareness this policy raises and educational opportunities posed, through enforcing this policy the University will be participating in one of many steps forward toward a better campus climate.