University releases updated sexual misconduct policy

Wednesday, April 6, 2016 - 6:31pm

The University of Michigan released the full text of its revised sexual misconduct policy on Wednesday after a nearly year-long revision process, cementing an array of previously reported policy changes, including an expansion of what is considered prohibited conduct, adjustments to the enforced definition of consent and the consolidation of sanctioning and appeals procedures.  

The new policy is nearly double the length of the current document, and the first update since 2013. Much of the text of the document is significantly more stringent and includes in-line definitions of terms and the investigation process, unlike the current one. The new policy will go into effect July 1, and will now be known as the the University of Michigan Policy and Procedures on Student Sexual and Gender-based Misconduct and Other Forms of Interpersonal Violence.

In a March interview with the Daily, University President Mark Schlissel said the lengthy revision process, which included various town-hall-style meetings to gain student input and a sexual misconduct survey administered in January 2015, was necessary to address student concerns.

“We have been working hard for many months to update our policies and procedures to make them more clear, to keep them as fair as possible and to create a process that renders a timely decision so people can move forward in safety and their educations,” he said.

Expanded scope of prohibited conduct

Under the revised policy, the University’s Office of Institutional Equity is tasked with investigating not only instances of reported sexual misconduct cases — which numbered 172 in 2015 — but also incidents of reported stalking, intimate partner violence and gender-based harassment.

The policy’s definition of gender-based harassment outlines actionable cases as ones relating to “actual or perceived gender, sexual orientation, gender identity, or gender expression.” OIE will investigate any conduct that creates a “hostile environment” for the claimant, even if the act is not sexual in nature. Stalking and intimate policy violence were previously included in the policy as prohibited activities, but will now be separate categories.

Holly Rider-Milkovich, director of the Sexual Assault Prevention and Awareness Center, said in a March interview with the Daily that the expansion was necessary to ensure the University’s compliance with federal regulations including the Clery Act and Title IX.

“Our (goal) … is to be as inclusive as possible of the kind of misconduct that we see as being related to these issues, as well as respond to federal and other emerging guidance,” she said.

Because of the expansion of the policy to include gender-based harassment and interpersonal violence in addition to sexual assault and harassment, University administrators have said they expect to see an increase in the number of Title IX cases reported and investigated.

In January, OIE’s annual sexual misconduct report showed a 33-percent increase in the number of misconduct reports from 2014 to 2015, while the number of cases investigated by OIE remained the same. Of the 172 cases received by OIE in 2015, 29 were investigated, 66 were referred to the Review Panel and 78 did not fall within the scope of the policy.

Detailed definitions of consent, incapacitation and coercion

The updated policy outlines a more comprehensive definition of consent and provides students with a clearer expectation surrounding its meaning. While much of the language remains the same in both versions, the new policy clarifies certain ambiguities in the current guidelines that only explain consent as a “clear and unambiguous agreement.” The new revisions elaborate on the definition of non-verbal consent, stressing that it is “not to be inferred from silence, passivity, or lack of resistance,” and noting that non-verbal cues “may not be sufficient” to gain consent.

It also encourages students to gain affirmative consent, stating that not only must consent be given, but that it also must be actively sought, noting that the individual who initiates a specific sexual act “is responsible for obtaining Consent for that activity,” and emphasizing expectations regarding accountability.

A 2015 Michigan Daily report on one student’s experience with the University's sexual misconduct policy found several discrepancies between SAPAC’s definition of consent — which encourages verbal, affirmative consent — and the University’s enforced definition of consent under the current policy. The new policy’s definition of consent addresses many of those discrepancies.

In addition to consent, the new policy further explains the definition of incapacitation, providing students with clearer-cut questions to determine whether someone meets the criteria. At an October roundtable hosted by the SAPAC, students voiced concern about policy definitions surrounding both consent and incapacitation, emphasizing the ambiguity of such words.

The revised policy states that the University evaluates incapacitation cases by asking if the person initiating sexual activity was aware that the other individual was incapacitated and if “a sober, reasonable person, in the same situation” would been able to determine if the other individual was incapacitated. If yes is the answer to either one of the above questions, the policy says there was no consent and there was most likely a policy violation.

While the current policy already says consent cannot be obtained through force, the new definition also specifically bars individuals from initiating sexual activity through coercion, or triggering fear in another person.

Increased disclosure of witness identities and sexual history

Another new addition in the updated policy includes a clause allowing the consideration of “Prior or Subsequent Conduct of the Respondent” and  “Prior Sexual Contact Between Claimant and Respondent” during investigations.

The policy document clarifies that this information would never be used as evidence or to evaluate character, but would instead serve to determine pattern and intent of an incident. According to the policy, the knowledge would be used in a limited number of cases if the information would “help the Investigator understand the manner and nature of sexual communication between the two persons.”

LSA senior Laura Meyer, volunteer co-coordinator for the Networking, Publicity and Activism Program at SAPAC, expressed concern about this practice in a recent interview. She said such policies stem from a larger, underlying issue of how consent is defined.

“What I would really like to see is a verbal standard,” Meyer said on consent. “Not one that relies on trying to understand body language but something that relies on verbal, enthusiastic, affirmative, sober, coercion-free consent.”

The new policy also requires witness names to be disclosed to both parties during an investigation, which Meyer also cited as a concern, saying it could potentially be a negative for some groups on campus.

“We know from the campus climate survey of sexual misconduct that people in close-knit communities on campus are more likely to experience sexual misconduct, and so I think that the identification of witnesses is potentially a negative for those communities,” Meyer said.

She noted that other schools have implemented similar policies with the aim of making the process fairer, and said she hopes the University evaluate the success of the effect of the new clause.

The updated policy states that the University will review the policy as a whole each year, making appropriate modifications as needed.

Restructuring of sanctions and appeals process

The new policy completely restructures the process of sanctioning respondents found to be in violation of the policy. Currently, a sole representative from the Office of Student Conflict Resolution determines sanctions, with the aim of preventing instances of the prohibited conduct in the future and correcting negative effects.

Under the new policy, OSCR will still facilitate the new process but its role will change to overseeing a separate sanctioning board composed of two faculty or staff representatives selected by the vice president of student life and the University president, as well as a student chosen by Central Student Government.

The addition of a CSG appointee was debated at multiple SAPAC roundtable talks in discussing policy revisions, with some students expressing concerns that a representative appointed by CSG would not be representative of the entire student body.

In an interview Wednesday, CSG president-elect David Schafer, a LSA junior, said he appreciated including a student presence in the process and believes it is a step toward greater transparency.

“Going forward, there must be a continued focus on transparency and accountability throughout this process,” Schafer said. “Micah (Griggs) and I look forward to working with all of the involved stakeholders.”

The new policy does not delineate whether the student representative will be a member of CSG or the student body at large, which Schafer said was a concern.

“While I believe that students must definitely be represented on the Sanctioning Board, I believe the clause referencing CSG involvement must, in greater detail, specify the process by which the student representative will be chosen,” he said.

A third change to the sanctioning process impacts the procedure for appeals once sanctions are given. Under the new policy, if either the respondent or claimant takes issue with the sanctions or findings, they may appeal decisions to an external, third-party reviewer. The current process directs appeals to an Appeals Board, which consists of one student appointed by the Central Student Government, one faculty member appointed by the Faculty Senate, and one administrator appointed by the University President.

The impartial reviewer in the new policy will be chosen by the office of the general counsel in consultation with the vice president for student life. The general counsel and vice president for student life are currently Tim Lynch and E. Royster Harper, respectively.

“The External Reviewer will be a neutral party, most often an attorney outside of the University with significant legal experience, knowledge, and judgment,” the policy reads.

In a March interview, Schlissel acknowledged that implementing the policy will require education and awareness efforts on campus, but said he hopes to engage the entire University community to create reform on the issue.

“Our overarching goal is to make campus as safe as possible,” he said.