Critic’s Pick: Disciplinary Procedure

We’ve covered a lot so far when looking at what makes a good sexual assault policy, but there’s one really important aspect that we’ve not yet addressed: the disciplinary procedure. There is so much at stake during a campus judicial proceeding, and the process can make or break an experience of a student seeking justice regarding a sexual assault. This is the point where, regardless of what is written in the policy, things can really break down if disciplinary procedures are not standardized and consistently enforced.

It’s really hard to assess exactly how disciplinary procedures work on different campuses just from reading things online. Obviously, I am most familiar with my own school’s procedure, so I’m going to talk about some of the really important aspects of a disciplinary procedure (I’ll try to introduce them in the order they might come up during a real hearing) and analyze what Columbia University is doing!

Statute of Limitations

Perhaps you’ve heard about the students at the University of Oklahoma, who took action after finding out that a student could not file if it was more than 30 days after the assault took place! Considering the amount of time it takes many survivors to come to terms with what happened, let alone prepare to file a complaint, that is a ridiculous statute of limitations (the school’s president agreed to increase it to one year). Columbia is much better about this—complaints may be filed against students who are currently enrolled in a school or on leave, in which case the hearing may be postponed until the respondent student has re-enrolled. There is also a provision that if charges are filed against a student in his/her final semester but the hearing process is not completed by the end of the semester, the respondent’s diploma may be withheld pending a final outcome. This makes sense: students should be able to file within the campus judicial system at any time, regardless of when the assault occurred, as long as the respondent is still in school.

The Hearing Panel

Columbia’s hearing panel is made up of two deans and one student chosen from a trained pool and all having no affiliation or other connection with either party. Both the complainant and respondent are given the names of all the panelists before the hearing and can challenge any member based on conflict of interest or prior acquaintance/association. If the student member of the panel is challenged, the parties can mutually agree to exclude the student hearing panelist entirely, so the panel would consist of only the two deans. In addition, it seems that the student member does not need to be in agreement about the finding. For there to be a finding of a violation of the policy, the panel does not have to be unanimous but both deans must be convinced. Essentially, if the student disagrees, his/her opinion does not matter. What’s the point of having a student on the panel then? Perhaps the student contributes to the discussion when trying to figure out an outcome, but it seems like if they are going through the trouble of training student panelists and having them spend their time hearing these cases, their opinion should be taken into account.

My guess is that there would be students filing a complaint who would not want student panelists at all, especially on a small campus. Even if the complainant or respondent did not directly know the student panelist, it’s quite possible there would be mutual friends and the possibility that confidentiality could be broken. My fear is that having student panelists might deter some students from filing. On the other hand, maybe students want a student there as a peer—someone who might understand the type of situation they were in, the kind of social environment on the campus, etc. Either way, I think what’s best is giving students the option to opt in or out of having students on the panel.

Training

Obviously, all hearing panelists should be trained. Columbia does this—wonderful! Anyone making any sort of decision on sanctions or appeals should also be trained. This is where Columbia has fallen behind. In addition, the new OCR guidelines state:

Training for employees should include practical information about how to identify and report sexual harassment and violence. OCR recommends that this training be provided to any employees likely to witness or receive reports of sexual harassment and violence, including teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.

There’s a bunch of other tidbits about training in the guidelines as well. Ideally, every administrator, staff, faculty member, or any person at the university that comes into contact with students, as well as all the students at the university, should be trained to handle disclosures and know the resources available. Training that raises awareness and builds skills is essential in creating a safer campus community that is inhospitable to violence and encourages reporting.

Complainant/Survivor Support

Both students should have the same opportunities for support and information during a hearing. Columbia explicitly states:

Both students are entitled to have a Supporter present at the hearing. The Supporter must be a current member of the Columbia University community (faculty, staff or student). The Supporter, however, should not be someone who has a current formal role (e.g., an advisor, professor, coach, etc.) with both of the students or the other student, such that there is a potential conflict of interest.

In addition, the Supporter cannot be a witness, lawyer (either party can consult an attorney outside the hearing room) or faculty member of the student. The Supporter cannot intervene in the hearing, only support the student in a non-disruptive way. Whatever the rule is for having support during the hearing, fairness and due process demand that both parties have the same options for support.

Evidence

The way the complainant was dressed and his/her past sexual history should not be used as evidence during a hearing. Victim-blaming is rampant in our rape culture, and practices that focus on what the victim was doing at the time of the assault only serve to reinforce that blaming. Columbia clearly states:

The prior sexual history of either party, other than the history of a sexual relationship between the parties, is not admissible in the hearing, except testimony submitted by a party concerning his or her own sexual history. Either party may submit evidence of the history of any sexual relationship between the parties. If either party submits such evidence, then the other party has the right to respond to that evidence.

There seems to be no explicit mention of the way the complainant was dressed, but Columbia does make clear that they are only concerned with what happened surrounding the particular incident in question (meaning they don’t want character witnesses, etc.) because what they are trying to determine is if the respondent violated the sexual assault policy.

Minimum Sanctions

Should universities have minimum sanctions? Columbia doesn’t. The policy says:

Sanctions include, but are not limited to, reprimand/warning, disciplinary probation, suspension, or dismissal; a student may also be barred from certain University facilities or activities, or required to attend education programming.

There is a whole range of sanctions determined on a case-by-case basis, and this system has advantages and disadvantages. First, I think it acknowledges that there are gray areas and different circumstances. It may give students who made a mistake a chance to learn something (maybe from attending educational programming) and never sexually assault someone again. On the other hand, universities can get a bad rap for not taking sexual assault seriously enough. There is the risk that a serial rapist will be allowed to remain on campus in a setting where their next victims are just down the hall. It’s a tough balance, but what needs to be clear is that if there is a violation of the policy, schools will take that seriously and recognize when someone needs to be removed from campus for safety and justice.

Appeals Process

When it comes to the appeals process, there are three very important parts of a good procedure:

  1. Both the complainant and respondent should be able to appeal. The students should be given equal rights to appeal the outcome of the hearing following due process. This is currently not the case at Columbia—only the respondent can appeal, but this is something that they are looking to change in the near future.
  2. One person should not be given all of the power in the appeals process. Often, one university official can strike down the sanctions that were imposed, and when the possibility of a conflict of interest exists because the person making the decision is a Dean of the student in question, this is problematic. Columbia currently has it set up so that the Dean of Student Affairs makes the final decision on sanctions after a recommendation from the Hearing Panel. The respondent then can appeal to the Dean of the school that he/she is enrolled in, and this Dean has complete authority at that point on what happens to the sanctions. Some sort of check on this power is important.
  3. There should be a reasonable amount of time given for a student to appeal. When a Columbia student finds out the outcome and sanctions from the Dean of Student Affairs, he/she then has 30 days to appeal. This is a really long time, especially for the complainant to wait. It leaves survivors on edge for a whole month after the hearing is supposedly over and gives too much time for the respondent to find a procedural error or some other grounds for appeal. For some universities, this window of time is as little as 3 days, but generally, no more than about a week seems reasonable to me.

Again, these are just a few of the important issues that come up when discussing a campus judicial process. There are many more we could talk about, but I just wanted to go over a few key things to start thinking about when looking at your school’s policies and procedures. If you want to know more about what your school is doing in terms of disciplinary procedures, any current student or recent alumni can walk through their policy by participating in SAFER’s Campus Accountability Project. Submit your policy today!

Critic’s Pick: Oversight

Now that we’ve explored several aspects of sexual assault policies, it’s time to examine how policies are monitored and revised. Who is in charge of enforcing the policy? Is there a review process to fix problems? How can students or other members of the community raise concerns about the policy and procedures? Every school must be mindful of oversight.

Regardless of what the school’s policy looks like, it is of utmost importance that oversight is clearly articulated. It doesn’t matter how good a policy is if no one is going to follow it as written. I’ve found some good examples of well-defined oversight that might be helpful as models for those schools that have yet to identify the management and revision of their policies.

Let’s begin with Sarah Lawrence College.

Disclaimer: At the top of Sarah Lawrence’s Assault Awareness page, it says, “This policy is currently under review by the Sexual Harassment/Assault Policy Review Task Force. The following policy will remain in effect until the task force completes its work in fall 2008. When the new policy is completed, the community will be notified of the change in policy and the new policy will be available online.” It’s currently 2011, and Sarah Lawrence has yet to get their shit together enough to put their revised policy online. So, I can’t guarantee that the information below is completely up to date, but it’s useful to look at as an example.

One of the tabs on this website is “Education Prevention Response.” At the bottom of this page, there is a section that clearly states the committees responsible for sexual assault education, prevention and policy recommendations, which is great. What’s even better is this statement:

Students, faculty and staff with questions, ideas or concerns about various aspects of the College’s sexual assault education, prevention and response program should contact the appropriate group below.

Students are then directed to one of the following: Health Education Programming Committee, Sexual Assault Education and Prevention Committee, or the Sexual Assault Policy Committee. For each one, Sarah Lawrence lists the responsibilities and a contact person. Fantastic! Students know exactly where to go and whom to contact if there are questions or concerns with the campus resources and policy.

Occidental College has a pretty comprehensive Sexual Assault Policy (for Students), which contains clear statements about policy revision and policy enforcement. Under “Institutional Responsibilities,” there is a bullet point saying:

Policy will be reviewed annually by the Dean of Students Office to coincide with the California Penal and Educational Code.

We know when the policy is reviewed, who is reviewing it and what kind of code it is following. Presumably, students could to go to the Dean of Students Office with concerns that might be incorporated into the policy review. In addition, most schools don’t review their policies annually (it’s often every 3 or 5 years), so it’s great that it takes place that regularly. Right under this, Occidental has a section titled “Policy Enforcement,” which says:

This policy was authorized and approved by the President of Occidental College and is enforced under the authority of the Dean of the College, Vice President of Student Affairs/Dean of Students, Vice President for Administration and Finance, Vice President for Enrollment Services, Vice President for Institutional Advancement, and Vice President for Information Resources.

This is also good—we know who has approved of the policy and who enforces it. To have a truly great policy, it is essential that what is written is enforced.

Another good example: Earlham College. There is a section under its Sexual Assault Policy called “Dissemination, Monitoring and Amending the Document,” which addresses where the policy and security report are available to read, which office maintains records and provides administrative review, how and when the policy can be amended, and whom to contact with proposed changes.

In addition, Earlham addresses many of the same issues under “Review and Revision” of its Judicial Policies and Procedures. There is a regular five-year review of the college’s principles and practices, and any community member or group can propose amendments (committee to contact is given). In addition, there is an extra provision:

Should unforeseen difficulties with this policy and process materialize, the Vice President and Dean of Student Development, in consultation with the enumerated Judicial Process Authorities, may institute temporary changes.

Earlham addresses the review and revision process in both its Sexual Assault Policy and its Judicial Policies. It’s extremely helpful to have it in multiple places to make it very accessible. Students should be able to make suggestions and raise concerns easily, as these policies and procedures affect them very directly.

The three schools that I just discussed above all acknowledge oversight explicitly in their sexual assault policies, but there are some schools that only bring up the issue in their general code of conduct or judicial processes. Southern Illinois University Carbondale and Marquette University are two such schools. SIUC has a whole section titled “Interpretation and Revision” under the Student Conduct Code, which discusses questions of interpretations, formal and emergency reviews, amendments and how newly updated policies and procedures will be disseminated. Marquette University has a bit of a less extensive section called “Amendments” but addresses whom to give proposed amendments and who will be responsible for approving those changes.

While it’s great that schools include sections on oversight, having them directly related to the specific issue of sexual assault would improve the policy significantly. So, for those of you who are now checking whether or not your school addresses oversight, the important things to include are:

  • Enforcement: is there someone in charge of making sure the policy is followed as written? Where can students get their questions answered?
  • Review: is there an office or person to regularly review the policy
  • Revision: can students and community members propose changes easily?

Make sure the school clearly articulates each of these points because they are essential to a strong policy. It is quite possible the school already has procedures in place but has not included them transparently in the policy. Oversight is such an important part of a school’s accountability in having and enforcing a sexual assault policy.

Critic’s Pick: Reporting Options and Instructions

It’s time to examine a new aspect of sexual assault policies: reporting options and instructions.

Reporting a sexual assault is often overwhelming, confusing, intimidating, nerve-racking and a whole host of other things. There are plenty of barriers, both physical and emotional, that a survivor may face when considering reporting. Unfortunately, college campuses frequently contribute to the confusion by not providing clear reporting options and instructions. It is important that schools explicitly lay out all the options a student has (whatever those options may be) while empowering students to make their own choices about how to proceed after an assault.

First, it’s important to establish some basic ideas and definitions. Students who have been sexually assaulted often have the choice to file anonymously so as to not reveal their identities. This can consist of filling out a form, either on paper or online, to give the student the chance to be heard and time to decide what course of action to take. All submissions will be kept confidential, but this type of reporting allows for the crime to be counted in the campus crime statistics. Some universities state that in the event that specific information is disclosed in this report (like names or locations that reveal the identity of the involved parties), the school has an obligation to investigate if it threatens the safety of the campus community. Anonymous reporting, however, can limit the school’s ability to conduct an effective investigation. The good thing for survivors is that an anonymous report does not limit the option to pursue judicial or legal action at a future date.

Confidential reporting is a bit trickier in that it can consist of those communications that legally cannot be disclosed to anybody else with the consent of the survivor (barring imminent threat of danger to self or others). An example of this would be talking to the school counseling staff (psychiatrists, psychologists) or health service staff. This isn’t the only kind of confidential reporting—sometimes, it includes communications that will not be disclosed except on a need-to-know basis. This type of reporting balances the desires of the student bringing forward the report with the safety of the campus. Necessary steps and disciplinary measures can be taken in order to protect the community in the most confidential way possible. Examples of confidential sources would be university police, faculty or staff.

There’s a lot of different models out there of how schools give students access to reporting options, so it seems most productive to just go through some examples. Let’s start with Bowdoin College. In its policy, under procedural options, it discusses confidentiality:

The College will investigate and attempt to resolve a report of Sexual Assault and/or Sexual Misconduct.  The College recognizes that a Complainant may desire confidentiality and may request that the College not investigate or pursue resolution of a report.  In such cases the request must be in writing and include a waiver of investigation, and the College will maintain confidentiality to the extent permitted by law.  However, the College reserves the right to investigate and pursue resolution of a report when it is deemed necessary to protect the interests of the College community.

The best part about this statement is the understanding that a student may not want to pursue further action with a report—it recognizes the individual choices a survivor can make. Bowdoin does a pretty decent job of laying out a student’s options but fails to mention anything about anonymous reporting. When I googled “Bowdoin anonymous report,” however, the first thing that comes up is a document titled, “Safe Space Form for the Anonymous Report of Sexual Assault and Harassment.” It’s quite a detailed form, full of on and off-campus resources and assistance for survivors, so it’s a real shame that a student looking at the policy would have no idea that such a form exists. The really confusing thing is that apparently Bowdoin has two (!) anonymous reporting forms. The next document that comes up on Google is titled, “Anonymous Report Form for Sexual Assault and Misconduct.” This form also seems to include relationship violence because it has a section where students can mark the offender’s relationship to the survivor. In addition, for this form, the reporter does not have to be the same as the survivor, so someone could fill out this form on behalf of another person. While I truly appreciate the fact that Bowdoin has so many resources in place, the way they give students access to these resources is extremely confusing. These forms need to be linked to their policy so a student would not have to Google “anonymous report” to find them, and having two forms further obscures the whole process!

Similar to Bowdoin, the College of St. Scholastica states the reporting options and even goes into detail about each. Students have three reporting options: making an anonymous report, making a formal report within the College, or reporting to the police. Somehow, the details do not link to the anonymous report form that can be submitted online (which is right here!) The form is good—it defines confidential and anonymous right at the top after stating the purpose of the filling out the form and also asks explicitly if offender is or was a partner of the survivor. It just doesn’t make sense that St. Scholastica would not have their students be able to access the form from the policy.

A couple other good examples of schools that do a good job of explaining options are Occidental College, which has a section labeled “File a Sexual Assault Report,” and Case Western Reserve University, which also has a “Reporting” section. What is great is that both of these schools link to their anonymous reporting forms so students have easy access. Take a look at Case Western’s reporting map for students:

Looking at another example, I’m a bit confused by Union College, which seems to have a lot of resources and options but is not streamlined. I’ve found probably 10 different webpages where reporting options are listed, some are detailed, others are very vague. There is a Reporting Options page, which looks promising. One good thing is that it allows the survivor to feel in control by saying, “Union’s Administrations believe you as victim should be in charge of how you proceed.” You would think by the title that this page would list all options available to students, but it makes no mention of anonymous reports. I know for a fact, however, that Union does have anonymous reporting because on one of those 10 pages, it talks about it! It says:

Union College permits victims or witnesses to report crimes to CSAs on a voluntary, anonymous basis (and includes such anonymous reports in reported crime totals) but encourages individuals who report crime to provide identifying information. The purpose of this type of report is to comply with the reporting party’s wish to keep the matter anonymous while taking steps to contribute to future campus safety. With such data, the College expects to gather more accurate records of the number of incidents and determine if there is a pattern of crime with regard to a particular location, method, or offender and, as appropriate, alert the community to potential danger. The Campus Safety Department, unless otherwise prescribed by law, does not take anonymous police reports.

There is the form people can download for anonymous reporting, but at the top of the form, it says “Confidential Sexual Assault Report Form.” Very confusing. Also, the form is poorly laid out, giving people just about no space to write anything! There are some instructions at the bottom, which are good, except that they say this form is to be filled out by a third party, not in the presence of a survivor. I can’t find any other form for anonymous reporting, so I’m at a loss when it comes to how a survivor can fill out an anonymous report (which, according to the above paragraph, is encouraged). There seems to be a whole lot of overlooked holes here. Imagine if you were recently assaulted and trying to figure out how to navigate the system at this school.

Albion College provides us with an example of a bad anonymous reporting form. First, there are only 4 boxes for someone to fill out, which gives very little information to the school and very little guidance for someone filling out the form. In addition, it says, “No record of this report will be created or stored.” So what happens to it? What’s the point of filling out the form if it goes into the depths of cyberspace where apparently no one will read it because the information was never sent anywhere? If Albion wants its students to fill out this form, it has to at least give them a good reason.

From everything we’ve seen so far, it’s evident that every school has different reporting options and different ways of presenting those options, but a few things are quite clear. Schools must empower students to make their own choices about what course of action to pursue. Survivors should feel that they have knowledge of and access to all the resources available to them so they can remain in control of any process. These options should be laid out clearly and in one place to minimize confusion. When students disclose information about the incident, they should know who is bound by law to keep it confidential and what can initiate a campus or police investigation. While it’s true that colleges and universities have a responsibility to ensure the safety of their campuses, they must do that while respecting the desires of the reporting individual. Since most schools claim that they want to help students as much as possible in dealing with sexual assault, every school needs to take the initiative to make its sexual assault reporting policy transparent and comprehensive as part of their responsibility to survivors.

Critic’s Pick: LGBTQ-Inclusive Language

After thinking about what consent means for people with disabilities, I want to explore other often marginalized identities and discuss how campus sexual assault policies use (or don’t use) lesbian, gay, bisexual, queer transgender and gender non-conforming inclusive language.

Let’s begin with some unfortunate news: I’ve searched a heck of a lot of these policies, and I have only found ONE that explicitly mentions LGBTQ people. Recently reviewing a student submission, I came across this statement in University of Akron’s policy:

Sexual misconduct and sexual assault is a serious crime that can affect men and women, whether gay, straight, transgender or bisexual.

This is good—a policy needs to be explicitly inclusive of different communities of people. University of Akron does not simply say something vague about “all members of the community” or exclude (like many other schools!) huge populations of students by only using “man” and “woman.” Where I could see Akron’s statement improving is in addressing gender non-conforming, or genderqueer, individuals. To specify, gender non-conforming refers to people who do not follow societal norms, such as dress and activities, based on their biological sex. Gender non-conforming people may present themselves as gender-free rather than clearly male or female; they may identify as transgender, gay, lesbian, bisexual or none of the above. A more inclusive alternative to Akron’s policy might be: “Sexual misconduct and sexual assault is a serious crime that can affect any individual, regardless of sexual orientation or gender identity. It can affect men, women, or gender non-conforming/genderqueer people, whether gay, straight, transgender, or bisexual.” While the wording is only slightly altered, it would have huge implications for many students. The unfortunate reality, however, is that Akron is still miles ahead of other schools in this regard—they may not offer the most inclusive language, but they are the only institution I found that mentioned the LGBTQ community at all.

When a school’s sexual assault policy does not even consider certain populations of students, what does that mean for those students who consider themselves part of these populations?

In general, sexual assault is hard to talk about. It’s already the kind of thing that makes people uncomfortable, that people want to keep quiet. Sexual assault within the LGBTQ community has received so little attention even from those whose job it is to discuss it: researchers, support services and the criminal justice system. The discourse around sexual violence is often so focused on heterosexual men and women that any person not in those categories may feel marginalized and ignored. It’s hard to wrap your head around the idea of a woman assaulting another woman or a man assaulting another man when no one ever brings it up—but that doesn’t mean it doesn’t happen. LGBTQ survivors of assault have the same basic needs as heterosexual survivors of assault, but this lack of attention serves to keep this topic even further under wraps, resulting in a lack of culturally competent support and very few resources for healing. Queer survivors have an equal right to be believed, validated, and supported to reach recovery and justice.

We live in a society with so many levels of internalized and externalized homophobia and part of understanding and changing violent behavior is acknowledging and challenging that homophobia. Although violence does exist within LGBTQ communities, their sexual orientations and gender identities are not the cause of that violence. Like all forms of sexual violence, assault within the LGBTQ community is used to assert power and maintain the status quo (specifically here, heterosexism).

There are several unique needs and problems that arise in the LGBTQ population when it comes to reporting sexual assaults. Just to name a few: fear of prejudice and victim-blaming because of societal homophobia and bias, fear of being forced to reveal their sexual orientation, fear of betraying the LGBTQ community if the perpetrator is also LGBTQ, and fear of having the experience minimized or sensationalized.

Looking at the wide range of campus sexual assault policies out there, it is shocking how few schools make explicit mention of the LGBTQ community. Even the most liberal campuses well known for having large LGBTQ populations don’t seem to directly address the issue. For all the reasons I mentioned above, it is not enough to simply use gender-neutral language.

Many schools, like College of the Holy Cross and Carleton College, limit the identities in their policies to “man” or “woman.” Although this wording recognizes same-sex assault (“by a man or woman upon a man or woman”), it does not acknowledge any gender identity outside of those norms.

Some campuses, like Macalester College and the University of Vermont, work to be inclusive of all identities in general, but do not name the LGBTQ community specifically. Tufts University provides a good example of this middle ground. Listed under the Survivor’s Rights, it says:

We will treat your case seriously regardless of your or any suspect’s sex, gender identity and expression, sexual orientation and behavior, race, ethnicity, religion, national origin, age, disability, or veteran status.

This isn’t terrible; it acknowledges the diversity of survivors of sexual assault and ensures that a case will not be unfairly minimized. However, there is something powerful about naming LGBTQ students as survivors. Especially on college campuses, LGBTQ people are often disproportionately assaulted, and therefore merit explicit acknowledgment. A study done by the Wisconsin Coalition Against Sexual Assault shows that from a sample of 412 university students, 16.9% of the subjects reported that they were lesbian, gay, or bisexual; the remainder identified themselves as heterosexual. 42.4% of the lesbian, gay, and bisexual subjects and 21.4% of the heterosexuals indicated they had been forced to have sex against their will. With this in mind, when policies explicitly include the LGBTQ community, it is validating and supportive in an active way that encourages individuals to come forward.

The majority of policies that I’ve seen fall under this last category, and while maybe it’s not the worst, there’s no good excuse for not being more explicit. The problem does not seem to be that schools are not aware of sexual violence against the LGBTQ community. In fact, many schools have fact sheets and other information about this very topic posted online to help. Check out these great resources from Illinois State UniversityLewis and ClarkHarvard UniversityGeorge Washington University,University of Minnesota, and University of California, Berkeley. The Office of Sexual Assault Prevention (OSAP) at Evergreen State College even states:

OSAP is committed to being a culturally competent, Queer-positive, Transgender-positive space and provides services sensitive to the unique needs of all students, staff and faculty, particularly those whom are members of groups disproportionately affected by sexual violence. OSAP collaborates with community agencies, First People’s Advising and student activities groups to provide advocacy and services relevant to each individual.

Not one of the schools listed above includes anything about LGBTQ students in its policy, however. It’s baffling that the great resources and knowledge that schools possess don’t translate into inclusive policies. The majority of policies that I’ve seen fall into the same category as Tufts with regards to inclusiveness, and while maybe it’s not the worst, there’s no excuse for not being more explicit. One or two sentences in a policy could make all the difference for many students.

Critic’s Pick: Consenting with Disabilities

As I promised last time, I’m going to delve a little deeper into the notion of consent this week by looking at what consent means for people with disabilities, including cognitive/developmental disabilities.

To start, what does it mean to have a disability? The Americans with Disabilities Act provides this definition:

With respect to an individual, the term “disability” means

(A)  a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B)  a record of such an impairment; or

(C)  being regarded as having such an impairment.

This definition does not distinguish between type, severity, or duration of the disability and is an inclusive definition that captures the roughly 30 million Americans with disabilities (as estimated by the World Health Organization in 2004). Here, a disability is a condition that limits someone’s ability to function in major life activities like communication, walking, etc., and which is likely to continue indefinitely. The first part of the definition focuses on the individual, while the following parts focus more on the reactions of others to a past or present impairment.

Let’s jump into this issue in the context of campus sexual assault policies by looking at a specific example: Marlboro College. This school boasts one of the highest enrollment rates of students with Asperger’s syndrome. When SAFER conducted a training there last fall, students expressed frustration with the explicit contradiction in the current language employed in the “effective consent” part of the policy:

‘Effective consent’ does not include consent that is given by a person who is younger than 16, mentally disabled, intoxicated or otherwise impaired, or unable to make a reasonable judgment concerning the nature or harmfulness of the activity.

Does this mean that people with cognitive/developmental disabilities just can’t give consent? Ever? Why are students with disabilities lumped together with teens younger than 16 or temporarily drunk people? What kind of message does this send? The wording suggests that people with disabilities are either considered children or not in a conscious state of mind, incapable of making decisions or forming preferences in order to negotiate sexual behavior. For the students who identify as having disabilities at Marlboro, this oversight means a policy that is sex-negative and ableist.

And it’s not just Marlboro! Searching these policies has led me to plenty of schools with policies that contain very similar wording including but not limited to College of the Holy Cross, Providence College, Trinity College, and Stanford University.

There are so many issues here to unpack on a much larger scale. Abby Wilkerson, in her article, “Disability, Sex Radicalism, and Political Agency” discusses the idea of cultural erotophobia, which is not just a general taboo against discussing sexuality and displaying sexual behavior, but a way to create social hierarchies based on gender, race, sexuality, class, age, and physical/mental ability. Erotophobia is alive and well in policies that brush over the critical concept of consent and leave it up to their students to arrive at their own definitions.

It seems as if people with disabilities are often treated as if “their sexualities exceed the bounds of respectability.” Whether this means being asexual or hypersexual, it’s as if their sexuality requires the monitoring and control of others. The notion of people with disabilities as sexual beings can be viewed as perverted. Wilkerson states:

The message to a young person marginalized based on sexual identity, disability, or both: your sexuality—a fundamental aspect of personhood—is inappropriate.

This idea is a part of disability oppression, and it infantilizes those with disabilities and strips them of their agency as sexually active adults.

A great example of this bias is mentioned in a 2009 article by Joyce Nishioka. A proposed bill in Massachusetts would have made sexual images of non-consenting seniors and adults with disabilities illegal. Yes, just like child pornography. Again, what message is this kind of bill sending? It implies that if you have a disability, you can’t give informed consent. It’s this whole attitude that people with disabilities should be controlled in a patronizing way “for their own good” that really gets me. All this does is highlight the discrimination that people with disabilities face every day and ultimately serves to undermine their self-esteem and personhood.

Disability activist/scholar Bethany Stevens has a really awesome blog called Crip Confessions, where she says:

…disparities in sexual health are often a result of the presence of oppressive social forces, such as discrimination and coercion. Therefore, disability oppression does not just work to make disabled people poor, subject to abuse, sterilized or killed; it also harms our overall sense of health.

I think there has to be a balance between protection (because there are obviously challenging issues here and since people with disabilities may be more vulnerable to assault) and sexual freedom. The sexual choices of individuals with disabilities must be respected and upheld as a part of their inherent agency and humanity.

With this framework in mind, we can really dig into the heart of the issue in campus sexual assault policies. Last time, I mentioned that Antioch College and Reed College had pretty comprehensive definitions of consent in their sexual assault policies. What I didn’t point out was each school’s mention of this particular issue. Let’s start with Antioch. One of their clarifying points in their definition of consent is:

All parties must have unimpaired judgment (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions).

A lot of schools (like Sheperd University) choose this approach, using fairly vague phrases like “unimpaired judgment” or “substantially impaired.” Reed goes further in depth, including both a provision for physically incapacitated persons as well those with cognitive/developmental disabilities.

Physically incapacitated persons are considered incapable of giving effective consent when they lack the ability to appreciate the fact that the situation is sexual, and/or cannot rationally and reasonably appreciate the nature and extent of that situation…Mentally disabled persons cannot give consent to sexual activity if they cannot appreciate the fact, nature, or extent of the sexual situation in which they find themselves. The mental disability of the party must be known or reasonably knowable to the non-disabled sexual partner, in order to hold them responsible for the violation. Therefore, when mentally disabled parties engage in sexual activity with each other, such knowledge may not be possible.

Many schools use similar language about “appreciating” the fact that a situation is sexual—Occidental College and Lewis and Clark College are two examples.

For an example of a school that does not patently reject the right of students with intellectual or cognitive disabilities to engage in sexual activity, let’s look at Westminster College’s definition of informed consent. Under the section that details when informed consent cannot be given, Westminster bullets:

Some mentally disabled persons cannot give effective consent if they are incapable of understanding the nature of the sexual situation in which they are placed.

The use of the word “some” opens up the possibility of other students with disabilities fully understanding the sexual nature of the acts they are consenting to. However, the use of the passive voice in the phrase “they are placed” again takes agency away from the disabled person. It suggests that instead of choosing sex, these subjects are “placed” (like objects) into a sexual situation. So close…yet so far. It is in the close reading of sexual assault policies that careful wording reveals its power.

For the countless number of schools who choose not to address this complicated issue at all, it’s very important to mention cognitive and developmental disabilities as Reed and Antioch and many other colleges do. Policies that neglect to even mention the complexities of consent when it includes a person who identifies as having a disability sets up a barrier for that person coming forward to report. Paying attention to this issue makes a policy more inclusive and widely applicable in different scenarios.

Unfortunately, there is no clear-cut answer, no ideal phrasing and no model policy for this issue. Perhaps the language of appreciating the sexual activity is not bad—it does not say that individuals with disabilities cannot give consent ever (wrong!). It grants these students a degree of protection while respecting their sexual agency.

So if your school is like the University of Toronto and already has a group to represent students with disabilities, get them involved! This is something campuses need to address fully, as literally millions of individuals with disabilities are enrolled in our nation’s colleges. The most important thing schools can do with respect to this issue is utilize inclusive language in their policies that does not prohibit disabled students from engaging in sexual activity.

Critic’s Pick: Definitions of Consent

If you missed last week’s post on Drug and Alcohol Amnesty Policies, one of our goals here at SAFER is to use the Campus Accountability Project to gather the best and worst practices of campus sexual assault policies. This week, we’re investigating Definitions of Consent.

As far as policies go right now, nearly every school has a different definition of sexual assault. Most agree, however, that sexual assault occurs when there is an incident of “non-consensual” sexual conduct. Unfortunately, many schools stop there. Students are somehow supposed to know what non-consensual sexual conduct is when the word consent isn’t defined anywhere! Definitions of consent are integral to sexual assault policies because they are the key to determining when sexual assault or misconduct has occurred.

A surprising number of universities’ policies never define consent. Some attempt to briefly discuss what consent is not but can’t seem to make it to what consent actually is. A concrete, clear, and well-defined definition of consent allows students to assess their own behavior and lends support to survivors who choose to file reports and take action.

Let’s start by looking at what some regard as the classic example: Antioch College. The Sexual Offense Prevention Policy aims to foster positive, consensual sexuality that emphasizes respect and ongoing communication. Directly following the preface, the policy states:

Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct.

A number of clarifying points follow this definition, stating, among other things, that “consent is required each and every time there is sexual activity,” that the person initiating is responsible for getting consent, that silence is not consent, and that all parties must have “unimpaired judgment.” The nearly 15 clarifying points are extremely important in making this definition of consent concrete and understandable.

Reed College also offers a good example of a definition. It divides its definition into two parts: effective consent and ineffective consent. The policy makes clear that unless consent is clear and effective, it cannot be considered consent. The great thing about Reed’s definition is how it gets across the message that victim blaming is not accepted. Take a look at some of what it says about effective consent:

Effective consent is informed; freely and actively given; mutually understandable words or actions; which indicate a willingness to do the same thing, at the same time, in the same way, with each other…Students are strongly encouraged to talk with each other before engaging in sexual behavior, and to communicate as clearly and verbally as possible with each other…it is the responsibility of the initiator, or the person who wants to engage in the specific sexual activity to make sure that he or she has consent. Consent to some form of sexual activity does not necessarily imply consent to other forms of sexual activity…Mutually understandable consent is almost always an objective standard…

Reed begins with what consent is in detail and then encourages communication in a sex-positive manner, while acknowledging that not all situations are identical. This definition also provides an exception (the only exception!): long-term relationships. The ineffective consent portion recognizes that there are many scenarios in which a person is unable to consent while putting the responsibility on the initiators of the act. It emphasizes that victims cannot be blamed for what they experience. All in all, Reed’s definition of consent is detailed and comprehensive while providing numerous examples to reinforce clarity.

Let’s give a few more shout-outs to schools with better-than-average definitions of consent: Case Western Reserve University, Emory University, Duke University, and Hamilton College. While these definitions may not necessarily be quite as comprehensive as the two discussed above, they give a pretty clear idea of what the schools define consent to be.

There is a long list of schools, including Cornell University, College of William & Mary and Bethany College, that do not say what consent is but manage to define what consent is not. While this is not ideal, at least these schools are one step ahead of those who do not even come close to clearly defining consent. Boston University, Brown University, and Haverford College all fall under this entirely unfortunate category. Sadly, this last list of schools is by far the longest.

It’s about time that campus policies included a clear and detailed definition of consent. It is not enough to say that the college or university does not tolerate “non-consensual” sexual conduct. There is no way for students to truly understand what that means and evaluate their own and others’ behaviors unless consent is defined. How can students be expected to only engage in consensual acts if they don’t know what those are?

One highly controversial aspect of policies that I didn’t address today in the consent definitions is the statement about “mentally incapacitated” or “mentally disabled” persons. Tune in next time to get a rundown of which schools are doing it well and which ones can’t quite get it right.

And remember: consent is sexy!

Critic’s Pick: Drug & Alcohol Amnesty Policies

Hi readers: this is my blogging debut! I just joined the SAFER team as the Policy and Research Intern and am currently a senior at Columbia University.

Hopefully by now you’re familiar with the Campus Accountability Project—SAFER’s national initiative with V-Day to build a comprehensive public database of student-submitted sexual assault policies. Essentially, student activists can call out their schools on what’s being done well but also what could use some improving. One of the aims of the project is to gather the best and the worst practices. When it comes to what really makes a good policy, which campuses are excelling and which ones are lagging behind? This week, we’ll examine Drug and Alcohol Amnesty Policies.

To start, an amnesty policy offers immunity from campus discipline for victims who were in violation of other school policies when assaulted (for example, for consuming alcohol or drugs). Students should not be discouraged from reporting a sexual assault because he/she had been consuming alcohol or drugs at the time. As Southern Arkansas University’s “Good Samaritan Provision“ states:

It is in the best interests of this community that as many victims as possible choose to report to University officials. To encourage reporting incidents of sexual misconduct, SAU pursues a procedure of offering victims of sexual misconduct limited immunity from being charged for policy violations related to the sexual misconduct incident.

Sadly, a mere 7% of the schools in our CAP Database currently have amnesty policies! With so many barriers to reporting already present, colleges and universities must encourage students to report in any way they can. It is absolutely necessary that campuses include an amnesty clause.

So whom can we look to for ideas? Drake University certainly encourages the reporting of assault and sexual misconduct. The Understanding Sexual Assault brochure devotes a whole paragraph to Victim and Witness Immunity, acknowledging that victims are often hesitant to report out of fear of getting charged with policy violations:

To encourage reporting, Drake offers immunity from University disciplinary action for lesser policy violations that students reporting the assault/sexual assault may have committed. The University will provide referrals to counseling and may require educational options, rather than disciplinary sanctions, in such cases. Excluded from this grant of immunity are all students accused of encouraging or voluntarily participating in the assault/sexual assault.

Drake isn’t the only University that includes this kind of immunity. Case Western Reserve also makes their amnesty policy easy to locate within the Sexual Assault Policy. It strongly encourages people who have been sexually assaulted to report, stating:

When conducting the investigation, the university’s primary focus will be on addressing the sexual assault and not on other university policy violations that may be discovered or disclosed.

University of Mississippi, University of Oregon, and Colgate University do not elaborate a whole lot but manage to make clear that victims should not let his or her use of alcohol or drugs be a deterrent to reporting the incident.

To give a few more examples, Bucknell University, Emory University, and University of Colorado Boulder all have immunity/amnesty clauses that are not sexual assault specific. They are not particularly emphasized with regards to their sexual assault policies, but the clauses are clearly stated and important nonetheless.

It is not hard to see why having an amnesty policy is essential in encouraging students to report sexual assaults, but the sad reality is that the majority of schools do not have one. This is a call to students everywhere: use these examples to start a movement. Your school too can have a drug and alcohol amnesty policy—it just takes activists like you to get it started!