Sexual Misconduct Policy Leaves the Community Vulnerable

Sexual Misconduct Policy Leaves the Community Vulnerable

In the Spring of 2015, I was sitting in a Skidmore administrator’s office discussing the sexual misconduct policy, an issue I was frequently reporting on, when he or she got up and gently pushed the door closed.  Returning to the table, the administrator whispered, “between you and me, don’t have sex with anyone you don’t really trust and make sure you’re not drinking.”

At Skidmore, talk of sexual misconduct policy has faded from daily conversation, but sexual assault remains a timely topic that tragically affects students across the country.   If the statistic that 1 in 5 students are sexually assaulted is correct, then colleges require serious reform.  Many nights a week, some students find themselves out drinking, using drugs, and often, pursuing casual sex.  Along with regularly practicing these behaviors comes an informal willingness to tolerate this “high risk behavior” and an uncomfortable acceptance that sometimes late-night mistakes will be made. 

Hopefully, these mistakes are simple questions over whether sex with last night’s partner was a good decision. As we have seen across the country, however, there are often more serious issues over lack of consent and rape. To shore up any confusion regarding state policy, New York State and California have both created laws which call for Affirmative Consent during sexual relations on college campuses.  For every sexual advance, the receiving partner must provide a clear, verbal ‘yes.’  Both partners must also be under the legal driving drinking limit and must not be under the influence of other substances.

Although some intuitive phone apps have allowed for video recording of consent, affirmative consent—if it happens—is often a private exchange behind closed doors.  So, when an individual comes forward with a sexual misconduct accusation, it can sometimes amount to a “he-said, she-said.”

To ensure that victims receive adequate protections, Skidmore and most other U.S. colleges and universities have responded to systemic changes issued by the Department of Education (ED) under the Obama Administration.  A ED directive, the now infamous Dear Colleague letter of 2011, stipulated that colleges must process cases with a preponderance of evidence system and institute other reforms, or else lose their federal funding, and thus their ability to operate. The preponderance of evidence system means that accused students can be found responsible for sexual penetration (rape) and other offenses by a 51% guilty threshold, as opposed to the criminal justice system which requires 99% certainty. Some of the other requirements include hiring trained investigators, increasing resources for victims, refining reporting systems and lowering burdens of evidence necessary to find accused peoples responsible.  Most of the changes have brought increased safety to college campuses that in many cases previously lacked consistent, coherent policy   

With Obama out of the White House and Trump in, colleges may see a relaxation of sexual misconduct policy laws and enforcement by the federal government.  Though Joel Aure, Skidmore’s newly hired Title IX Coordinator, made note to me that colleges, particularly in New York State and California, will continue to adhere to stringent state laws.  He emphasized that “for Skidmore and New York State, I’m not worried… we are working to end discrimination.”  Despite a few state laws, most colleges across the country, now in compliance with Obama-era ED policies, may have a renewed choice about how to respond to sexual violence on campus.

With fortified protections written at the behest of Federal demands for compliance, significant concern for due process in Title IX policy and its enforcement has come. When a person appears in criminal court regarding an accusation of sexual assault, to be found guilty of their respective offense, they must be found guilty with 99.9% confidence from the jury.  This attempts to ensure execution of the time-tested tenet of the criminal justice system: innocent before proven guilty.  On college campuses, people accused of sexual penetration (rape) only require 51% confidence by a panel to be found responsible.  Aure certified that colleges like Skidmore also have an innocent-before-proven-guilty policy.  Despite his remark, he agrees that the burden of evidence remains strikingly lower than the criminal justice system. If certain conditions exist, this may not be a bad thing. 

Colleges must ensure that systems for punishing sexual misconduct are designed to protect the community.  To understand whether this is being done, I’ve looked at other high risk environments that have internal protections for ensuring safety for community members. The best example in the corporate world may be massage therapy. Masseuses spend their days in private rooms rubbing down naked people (their job function at its core). Not surprisingly, there are often complaints of wrongdoing, which take the form of both litigation and criminal investigations. 

Most major hotel companies have a similar policy for handling these incidents of alleged misconduct. When wrongdoing is reported, there is a thorough investigation. Additionally, if the customer involves the police, cooperation is given by the company. During the internal investigation, if the company finds reasonable evidence of wrongdoing—similar to the school’s preponderance of evidence system of 51% confidence—the masseuse is immediately fired. However, if the investigation does not find evidence of wrongdoing, the masseuse keeps their job, though a permanent note of the incident is placed in their file.  Despite the note, the employee goes on with their career as if nothing had happened. Now, if a second customer comes forward with an accusation however, the masseuse is immediately dismissed—even if the second investigation finds nothing.  The company does this because its ultimate loyalty is to its customer and its reputation as a safe hospitality company. If customers take their business elsewhere, shareholders will pay the price. These companies are not capable of, or responsible for, policing areas outside of their control. The masseuse—so long as they have not been found guilty in a court of law—may go get a job at another hotel spa down the road. 

There is a very real risk left open in my argument: the masseuse could be a serial sexual offender who moves to another hotel to commit similar wrongdoing. Aure explained that NY state law requiring notation of sexual misconduct on student transcripts “had to be put in legislation for a reason.” Without it, colleges retain the possibility of serial offenders bouncing to other colleges.  We have to “combat that,” he emphasized.  With legal mind, I question the way colleges have been combating serial offenders. 

By removing an offender from a company or a college’s domain, that institution has done its duty to protect its community and has hopefully allowed the police to perform their own investigation. A non-governmental organization is not a district attorney. It does not have the resources of a police detective, so it has decided as a company that it should not act as one.  The customer, or victim of sexual offense(s), has every right to take their case to the criminal justice system. And, if the masseuse is found guilty, hopefully they will receive a life-altering sentence presented by a judge and jury.  Colleges, on the other hand, have become quasi-extensions of the criminal justice system in some cases.

Corporations and colleges are not part of the government.  But, many colleges, whether by choice or not, have been acting as such. When they find students responsible for sexual misconduct, colleges in NY and CA, along with many across the country who have voluntarily opted for this policy, have put a scarlet letter on responsible students’ official transcripts.  In 2015, New York State began requiring it by law.  And consequently, most students will find it nearly impossible to transfer to another institution, an issue a number of students across the country have successfully sued colleges for with settlements reaching into the millions. Aure defends these transcript notations with his trust in college systems and an underlying assumption that “these aren’t criminal justice…sentences.”  While he is not technically wrong, the reality is more nuanced, and many accused students see their futures cut down by a 51% vote of confidence issued by a panel of professors with varying degrees of training. 

If a student committed the act they are accused of, expulsion and transcript notations may not be such a bad things. But refusing to question whether schools are acting beyond their duty threatens the well being of anyone who has been found responsible of an act they did not commit. This is not to say that most sexual misconduct accusations are manufactured. As a country, however, the policies of the criminal justice system reflect a communal agreement that protecting the innocent is of critical importance. Colleges have a duty look out for their community and to expel or fire when necessary, but this does not reflect how many are currently operating.

If a student is found guilty in court for sexual offenses, a school should have every right to reject that applicant.  And victims of sexual assault deserve the right to have their cases investigated by the police. But by emphasizing a duty to community that expelling makes possible, but not noting accusations of sexual assault on transcripts, campuses can strive to be safe spaces for all students, and not a potential threat to student futures. When colleges with limited resources and jurisdictions transcend their operating abilities, some young people may pay too a large price for acts they may or not have committed.  When it comes to issues of sexual misconduct, all students deserve reasonable protections. No one deserves to be threatened on campus, whether by rape or injustice. 


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