Ahead of the curve?: investigating sexual assault on campus

Sam Grainger-Shuba

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This article is the second in a two-part series exploring incidences of sexual assault on college campuses and how they are handled at Whitman and by colleges nationwide.

In the first part of this series, The Pioneer explored gaps in Whitman’s Title IX process through survivor experience. Some have spoken out about their negative experiences with the process, but in terms of complying with federally mandated best practices, Whitman is far ahead of most schools, according to Associate Dean of Students and Title IX Administrator Juli Dunn.

In the fall of 2013, Whitman reformed its process for reporting and investigating Title IX violations, including sexual assault. Whitman follows best practices put forth by national organizations that specialize in enforcement of the 1972 law prohibiting gender-based discrimination.

“For our campus, I think it’s hard for students while they’re here to recognize this, but Whitman’s really ahead of the curve relative to lots of other campuses,” said Dunn.

What does it mean to be ahead of the curve?

According to Dunn, it means that many of Whitman’s peer schools are looking to Whitman’s practices as a model for how to handle reports of sexual assault. In June 2013, President George Bridges and former Title IX Administrator Clare Carson gave a presentation on Whitman’s Title IX policy and procedures to the Annapolis Group, an organization of liberal arts college presidents.

By the Book

Whitman’s Title IX policy and procedure are based on material from the Association of Title IX Administrators (ATIXA), the Office for Civil Rights and the National Center of Higher Education Risk Managers (NCHERM).

Whitman currently uses the Civil Rights Investigation Model. Under this model, a trained investigator, with the help of the school’s Title IX Administrator, gathers informational evidence about the incident to determine responsibility. This system, according to both Dunn and Associate Dean of Students and Sexual Assault Prevention Coordinator Barbara Maxwell, is an improvement over the previous Title IX reporting process.

The old system forced complainants to compile evidence and witness testimony before cross-examining the respondent in front of a grievance council composed of two faculty, two staff members and two students. According to Maxwell, the process placed a huge burden on students to compose a complete and accurate case by themselves, all while under emotional duress.

“[The old system] was really hard. It really put [students] in the hot seat from start to finish,”  said Maxwell.

Dunn agrees.

“You can’t think of a more inhumane way to deal with someone –– to make them sit in a room with someone that they have made a claim against [and] to say, ‘This is what this person six feet away from me did,’ in front of a panel,” said Dunn.

It was the hope of Dunn and other staff members handling claims of sexual assault that the new system would increase reporting and support survivors who decided to go through the process.

Problematic Policy

The new Title IX process became available to Whitman community during the fall of 2013. As seen in Part One of this article series, survivors’ experiences have revealed parts of Whitman’s policy which may create problems for current and future survivors.

The materials distributed by the college aimed to publicize sexual assault prevention state that consent cannot be given while under the influence of alcohol or drugs. However, the policy cites incapacitation as the only condition in which people are not able to give consent. It uses NCHERM’s definition, which when summarized, means that a person is only considered unable to give consent if unconscious, unable to walk or “vomiting copiously.”

While the exact threshold of intoxication can vary, it is usually five to seven drinks for men or four to six drinks for women. A person is not considered “incapacitated,” according to this definition, even while “blacked out.” Blacked out means they have consumed enough alcohol to prevent their brain from turning short term memory into long term memory.

“Blacked out doesn’t mean passed out, and that’s where it gets difficult,” said Dunn. “People can be blacked out, and to someone who doesn’t know them, they don’t look blacked out at all. They can walk around and function at a party. Other people may not realize that it is happening.”

The college’s policy states that consent must be affirmative, and neither silence nor compliance can be regarded as consent. However, some women who have gone through the process report a grey line in the policy. Even if they did not explicitly give consent for all of the activities, if he could make a case that he thought she consented, then he did not violate the Sexual Misconduct Policy.

The result in these cases is that respondents can walk free by claiming that they thought their victims were capable of giving consent, even if they were clearly intoxicated.

“The other piece of incapacitation is the following: Should the other party have known? How would the other person have known that you were incapacitated? Obviously, if you’re passed out, unconscious, throwing up, those are pretty clear signs,” said Dunn. “But if you’re functioning fairly normally –– even if you don’t remember that you were functioning normally –– it might be difficult for another person to know whether you’ve had too much alcohol to the point where you can’t give consent.”

This approach is one of the reasons why the attackers of Natalie* and Mallory*, two survivors whose stories were reported in Part One of this series, still remain on campus.

The worst part for these women, however, was the inability to appeal the decision that the respondents in their cases were not guilty. For each investigation, the investigator and the Title IX administrator –– both employed by the College –– sit in a room with Dean of Students Chuck Cleveland to make a final decision. This decision has no hope of appeal.

“As a college, we may want to discuss if an administrative decision should be appealable, but at current our process does not allow for that,” said Dunn. “This is a newer process for all colleges, Whitman included. As such, I would expect that we will continue to review and refine our processes to ensure as fair and equitable a process as possible under federal law, guidelines and recommendations.”

Some experts on sexual harassment, including domestic violence advocate for the Walla Walla Police Department Chalese Rabidue, think that utilizing college employees to perform the duties of investigators and Title IX administrators creates a potential conflict of interest in the situation.

“I think it gets complicated when you use your own people to administer this process,” said Rabidue. “If they wanted to bring in outside investigators that weren’t employed by the college, I think that would be a little cleaner.”

She went on to note that college investigative policies do not interact with the fact that, in the United States, sexual assault is a crime punishable by years of jail time.

“Sexual assault is a crime; if [what happened] fits the legal definition, sexual assault is a crime. When it’s a crime, it needs to be handled by the legal system. I don’t know that if it’s an illegal crime that it should be handled internally; it needs to be handled by legal authorities,” said Rabidue. “If colleges want to do a parallel investigation under Title IX, then I think that’s fine.”

The three women interviewed for this story had no rape kit or DNA evidence to bring forth to the college during their review process. Rabidue acknowledged that in cases similar to these, going through the college process tends to have a better outcome.

“I think that it is good that people have a choice as to which route to take, but I still struggle with whether sexual assault being a crime should be investigated by non-law enforcement,” she said.

A Nationwide Problem

2012 marked the 40th anniversary of Title IX. The 1972 law prohibits gender-based discrimination in any federally-funded educational program or activity. Though generally associated with the creation of women’s sports teams in high school and college settings, Title IX covers ten key areas: access to higher education, career education, education for pregnant and parenting students, employment, learning environment, math and science, sexual harassment, standardized testing and technology. It is currently overseen by the U.S. Department of Education and the Office of Civil Rights.

As of 2014, colleges are the only independent, non-law enforcement institutions in the United States that are legally required to investigate instances of sexual misconduct and assault.

The Obama administration has acknowledged the problems and concerns associated with investigating sexual assault on college campuses. He has launched campaigns like “It’s on Us” and others that focus on the trauma of being assaulted while in college, mobilizing bystanders to stop sexual assault before it happens.

“You can see it as a paternalistic way to interpret the policy … The center of Obama’s rhetoric when he talks about Title IX being re-interpreted is about students,” said Assistant Professor of Rhetoric Studies Heather Hayes.

Hayes’ research focuses on social justice and activism.

“It begs the question: If you’re sexually harassed or assaulted in a private corporation setting, do you have more or less protection than if you’re sexually assaulted or harassed in a college setting?” she said.

She makes the point that the classification of a student as someone who needs protection puts them in a place of higher privilege than those who experience sexual assault in other settings, particularly on a community level.

Walla Walla YWCA Executive Director Anne-Marie Schwerin adds that in order to truly end sexual assault at college and beyond, there needs to be change on a cultural level.

“We’re not going to solve this problem by creating more bureaucracy,” she said. “Everyone needs [federal] money, truthfully, but I’d like to see the focus start earlier than college.”

Schwerin specifically mentioned that the YWCA’s yearly budget for sexual assault prevention is only 11,000 dollars. According to Schwerin, this number is merely a fraction of what they actually spend on survivor care. Someday, she said, she’d like to see those numbers flipped.

“If it meant that money was getting into communities earlier, I would be thrilled with that,” she said.

Held Back by the Curve

Since the Obama administration reinterpreted Title IX to focus on colleges’ investigations of sexual assault, the institutions have struggled to meet higher standards set by the federal government. As of June 2014, the U.S. Department of Education’s Office for Civil Rights was investigating 64 colleges as a result of the raising of standards. Whitman College is not on that list, but questions remain about whether Whitman’s use of best practices come at the cost of survivors’ mental health.

Andrea Piper-Wentland is the executive director of the Washington Coalition for Sexual Assault Programs (WCSAP). WCSAP is a non-profit organization that provides information, training and expertise for advocates and community programs that support those affected by sexual assault. She agrees that colleges may need to make some improvements in the way they handle Title IX complaints.

“I think [the mental health of survivors is] a valid concern. There are a variety of ways that these processes are structured around the United States,” said Wentland. “This [reinterpreted] legislation is a way for colleges to revisit the way that their systems are set up.”

At Whitman, Dunn remains committed to upholding the Title IX law to the tee.

“At the heart of the law is eliminating barriers to one’s education caused by sex or gender-based discrimination or assault. And who wouldn’t want to do that?” said Dunn. “What’s at the heart of the law, that’s what’s most important to me. And then how do we do right by our students and not just the bare minimum that is required by the law.”

The heart of the law may be important, but some think the federal government should change its approach altogether, claiming it is far easier to remedy a problem by going after the source than treating the symptoms.

“No matter what, [the Title IX debate] calls for accountability from colleges. It brings to light the reality of sexual assault on campuses nationwide and highlights the importance of comprehensively addressing needs of survivors,” said Piper-Wentland.

*Names have been changed to protect the identities of survivors.

 

Whitman’s Title IX Process (in brief)

 

  • Survivor files report of assault
  • Investigator assigned to collect information from both parties and witnesses
  • Investigator and Title IX Administrator come to a finding: respondent responsible/not responsible?
  • If yes, the case moves to Grievance Council for sanctioning; if no, the case is dismissed ( no appeal)
  • The Grievance Council assigns sanctions, which could include suspension or expulsion
  • Both parties can appeal sanctions if new evidence becomes available or there are substantial procedural errors

 

 

Resources for survivors of sexual assault in Walla Walla

Local Hospitals

All local hospitals provide 24-hour emergency medical services and examinations for evidence using a Sexual Assault Forensic kit.

Providence Saint Mary Hospital

401 W. Poplar Street

Walla Walla, WA

(509) 525-3320

Walla Walla General Hospital

1025 S. Second Avenue

Walla Walla, WA

(509) 525-0480

Walla Walla Police, 911 (emergency), (509) 527-1960 (non-emergency)

The Sexual Misconduct Prevention Coordinator and/or the Dean of Students Office will assist students who choose to report an incident of sexual misconduct to the Walla Walla Police Department.

YWCA of Walla Walla, 213 First Street, (509) 525-2570, (509) 529-9922 (24-Hour Number)

The YWCA is a community agency that provides comprehensive advocacy services 24 hours a day, seven days a week, including:

 

  • 24-hour hotline (509) 529-9922
  • 24-hour rape/sexual assault medical, legal, and court advocacy
  • Individual counseling and support groups
  • Safe temporary shelter

 

Rape, Abuse & Incest National Network (RAINN)

24-hour hotline 1.800.656.HOPE

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