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: 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.