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Tuesday, December 16, 2014

Sexual Assault Continues to be a Difficult Issue

Editor's Note: This is a two-part piece related to sexual assault. The second installment, related to educational efforts, is by Senior Staff Psychologist Kristin Eisenhauer. For more background, please review this post from last spring.

With regular reports of victim re-victimization, lack of fairness, campus bungling, and government over-reach, sexual assault on campuses continues to be an important topic nationally. While most campuses have grappled with this issue for a long time, the 2011 Department of Education's Dear Colleague Letter, related to Title IX, offered guidance for processes to be more deliberate and transparent.

This has been positive in that it reinforces that schools must continue to address violations of sexual misconduct policies. Institutions generally deal with student conduct to to ensure a safe and healthy learning environment. It is appropriate for campuses to deal with any claims of student harassment and violence.

The rapid changes in legislative requirements and guidelines and the amount of press on the topic have sent administrators scrambling to keep up. It is important for campuses to follow and adhere to legislation while still thinking for themselves. Chasing laws and bowing to public pressure can be confusing for institutions and their constituents. On our campus two guiding principles will always inform our policy and procedures. First, the process has to be fair, and second, it must be executed with compassion.

In the summer of 2014 Trinity's policy was re-written, presented to the University community for comment, and approved by the Standards Committee. This was the second change in three years and the new policy has been generally well-received. It is likely that the policy and our process will undergo annual revisions as both evolve.

The new investigative model places less emphasis on hearings and more on fact-finding in advance. This helps staff members discern important information, and make recommendations, in a more private and more thorough manner. With the sharing of statements and reports, the process is fairly transparent. A pool of faculty and staff members serves in multiple roles as investigators, hearing board members, and process advocates. More and better trained people are involved with multiple facets of the process, which will hopefully instill confidence in the broad ownership of our process. This group will meet each semester to review cases and suggest procedural improvements and policy changes as needed.

Our standard remains "the greater weight of the credible evidence," which means there must be some evidence, whether it is direct, indirect, circumstantial, based on aftermath reports, and takes into account the credibility of the parties involved and the information presented. Once viewed, the decision-makers must determine whether or not that evidence presents the likelihood that a violation did or did not occur. Part of the tension around assault cases is that there is little evidence to begin with. At times it may appear that a student has brought forth a legitimate complaint, but the process must reveal that a policy violation occurred. This presents tremendous challenges for the accused and accusing students and the decision-makers.

At a forum this fall, students and staff discussed one of the many vexing issues related to assault. Deciding when a person is incapacitated is extremely challenging. When alcohol is involved communication are decision-making are confounded by conflicting, incomplete, and inaccurate recollections. Two themes emerged from that forum and will likely be incorporated in the policy in the future.

First, any time a person engages in sexual activity with a person who has consumed any amount of alcohol, that person may may face an allegation of sexual misconduct. This may be be in conflict with an alcohol-fueled hook-up culture, but it does put students on notice.

Second, intoxication and incapacitation need to be more clearly defined. Being drunk, or even blacked-out (when a person may seem coherent but later have no memory) does not necessarily mean that someone is incapacitated -- or that another should know the person is incapacitated. Incapactiation generally means that someone cannot function on their own. An intoxicated person can drive a car or send text messages, while an incapacitated person probably can't.

Unless force or coercion are involved, sexual interactions between those who have been drinking are likely not considered violations of policy. In many drunken hook-ups students are taking advantage of one another for their own gain. If they would not have done so if completely sober is in many ways immaterial.

At first glance it may seem these elements are contradictory. Any sexual interaction with someone who has been drinking can place someone at risk of an accusation, but incapacitation goes beyond simply being buzzed or drunk. In part, this will set-up some general expectations and express caution to students. These areas will have to be considered on a case-by-case basis.

Further complicating matters, a person who has ingested a date rape drug is likely incapacitated, though this may not be clear to others. It is imperative that anyone who feels they have been given a drug be tested immediately as such drugs leave the blood system in a relatively short period of time.

Student empowerment remains the most potent weapon against sexual assault on college campuses. Policies and procedures are of limited and reactionary value compared to student action. In the context of binge-drinking and parties, students must step up to protect themselves and others, unfortunately, from one another.

Most importantly, the biggest issue of all is the impact that this issue has on accusing and accused students. Student versus student conflicts produce some of the most challenging conduct cases on campuses. In most other cases (alcohol, drugs), where university policy is in conflict with student behavior the university is not emotionally invested in the outcome (of course the student is). In student versus student cases, at least one student will walk away feeling unheard and unsupported. When students square off against one another, with attorneys and parents often involved, and high emotional stakes and consequences on the line, there will almost always be negative or ambivalent  feelings. Even students cleared of policy violations sometimes can never see the institution in the same light. And for accusing students, though a finding of "not responsible" only means that there was no evidence of a policy violation, these decisions often result in feeling great disappointment, anger, and a lack of support.

For the institution, it is common to hear from those unhappy with a decision that they find the process to be flawed. The blurry lines between policy violations and crimes, and their consequences, make matters worse. Many erroneously expect legal standards in a process that is anything but.

Given all that is at stake, one thing remains certain. There will be winners and there will be losers. In the end, that means we all lose. The campus community has a responsibility to not just be engaged in this topic in reaction to high-profile cases. Students must work with the faculty and staff to create a safe and respectful campus climate to reduce and eliminate issues of sexual assault.And when cases arise, the institution must conduct thorough and professional investigations and hearings.

In January the Coalition for Respect will re-convene to review the work and cases from the fall.

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