Author: Emily Shugerman
From flyers on newsstands to emails from Student Affairs, the
Occidental campus has been buzzing recently with news about changes to
the college’s Sexual Misconduct Policy.
Although the online Sexual
Misconduct Policy page shows updates as recently as Sept. 18 of this
year, the most recent substantive change to the policy was made this past summer. The most recent change expanded the appeals process for sexual misconduct
hearings, allowing both complainants and respondents to appeal the severity of the sanction.
more recent updates to the website were simply an attempt to add
clarity to the text and were not reflective of change in the policy, according to Associate Dean of Students Erica O’Neal Howard.
However, the attention given to these online updates has brought to
light several previous policy changes with which many students were
Among these changes is the redefinition of key terms in the Sexual Misconduct Policy. The definitions of terms such as intoxication and consent were updated during a major policy rework in the fall of 2011.
Several students and faculty members have raised concerns about these
policy changes, as well as the perceived lack of communication about
their implementation. The Office of Student Affairs acknowledged that the changes could have been communicated more effective and is attempting to
find new ways to reach out to students so that these changes do not go
unnoticed in the future.
most recent change to college Sexual Misconduct Policy is the expansion
of the appeals process. Previously, complainants or respondents in a
sexual misconduct case could appeal the decision for one of two reasons:
there was an outcome-determinative error in the hearing proceedings,
or new evidence was revealed that was not present at the time of the
investigation. The college has now added a third basis for standing on
appeals: the respondent or complainant can appeal the outcome of the
hearing if they feel that the sanction given was unjust.
This means that
appeals can be filed on the basis of the sanction being too light or
too harsh based on sanctions given for similar infractions in the past.
“We’re looking for equitable treatment at the end of the day, across
cases… We want sanctions to align with the policy violation,”
O’Neal Howard said regarding the new
policy. This does not mean that every appeal is automatically granted
standing, as Dean O’Neal Howard is quick to point out. Appeals must be
approved by Dean of Students Barbara Avery (or another faculty member of
her choosing) before they are heard.
the Office of Student Affairs states that this policy change was made
to ensure equitable treatment, some members of the campus community see
different motivations behind the change.
Politics Department Chair
Caroline Heldman believes that the change is in response to certain
administrators’ disregard of appeals procedures in the past. “I know of
at least a few cases where respondents were found responsible and then
they were granted standing on appeal even though… there wasn’t new
evidence and there weren’t procedural issues, and then their sanctions
were overturned” Heldman said.
One sexual assault survivor, who has been through the Occidental hearing process, believes that the expansion of the appeals process was
created to offer more chances for sanctions on respondents to be
lightened. The student believes this was done to provide protection to the
college from lawsuits by angry respondents.
“The school is finding these
people guilty and not wanting them off campus and it points to this
very clear reason of not wanting to be sued and not wanting to lose
money,” the student said. The Occidental Weekly does not identify survivors of sexual assault.
The college attorney could not be reached to
comment on the effects of such lawsuits on college policy, however Los Angeles County Public Records indicate two recent lawsuits on concerning sexual assault proceedings that appear to have been settled.
this change to the appeals process was the only change in Sexual Misconduct Policy this year, the aforementioned website updates have
brought student attention to past changes as well. The most notable of
these changes was made to the Definitions section during
a major policy overhaul in Fall of 2011.
This overhaul included a
change in the definition of consent for sexual intercourse, moving from a standard
requiring physical and verbal consent to a standard requiring either
one. The former policy stated: “Both
parties who have the capacity to act freely must receive verbal
agreement and positive physical cooperation for sexual intercourse to be
considered consensual under this Policy.” The policy now states: “Consent
can be given by words or actions, as long as those words or actions
create mutually understandable clear permission regarding willingness to
engage in (and the conditions of) sexual activity.”
to O’Neal Howard the policy was changed in an attempt to make the policy
more consistent with the ways in which students interact, and was based
on recent national research on the subject. The change in language does
not change the individual’s responsibility to obtain some form of
consent before proceeding with sexual activity. “We
are still looking to see consent that is clear and active – passivity,
silence don’t count. Consent needs to be active; needs to be clear for
each sexual activity,” O’Neal Howard said.
Others argue, however, that the policy
did not need to be changed in order to conform with the ways students interact. “In terms of consent, arguments have been raised by the
administration that verbal consent is something that they can’t expect
of students, while if they actually spoke to students they would hear
many voices on the contrary,” one student employee familiar with policy said.
The student argued that the change
in the policy made it unclear how consent was to be obtained, and that
it sent the wrong message to students. “If verbal consent is not
something that the school promotes within their hook-up culture, it’s
very hard to expect social change from the student body,” the student-employee said, speaking on condition of anonymity because he or she was not authorized to speak on the record regarding policy.
other notable change in the Definitions section of the policy was to
the term intoxication. College policy formerly stated that the
consumption of alcohol or other drugs rendered the user intoxicated and
unable to give consent to sexual activity. Beginning in November of
2011, the state at which an individual would be unable to give consent
was changed to incapacitation. “Incapacitation
is a state where someone cannot make reasonable decisions because they
lack the capacity to give knowing consent (e.g., to understand the “who,
what, when, where, why or how” of their sexual interaction).
Consumption of alcohol or drugs alone is insufficient to establish
incapacitation,” the policy states.
policy was changed in order to account for instances in which alcohol
or drugs were consumed but the user was still aware and, according to
O’Neal Howard, able to give consent. Some students and faculty members
believe that requiring a complainant to explain the why and how of
the situation places too much responsibility on the complainant. “[The
policy is] rife with victim-blaming connotations,” the student-employee said. “I mean asking people why they were assaulted really
can’t be construed in any other way in my opinion. It’s one step before
asking questions like, ‘What were you wearing?’ and ‘Why were you going
home with this person?’”
policy changes, which most students are only now becoming aware of, are
the product of several years’ efforts. Professor Heldman sees the apex
of these changes as starting five years ago.
“Five years ago the
politics department filed a complaint because we were concerned about the
sexual assault process at Occidental College,” Heldman said. “It
appeared that we weren’t following our own policies.” Following this
complaint the college invested a large amount of resources into
improving the policy, according to Heldman. She believes this investment
has lead to positive changes in the policy.
release of the Dear Colleague Letter in 2011 was another inspiration
for change. The letter was sent from the national Office of Civil Rights
to all U.S. colleges and institutions, calling on them to update their
sexual misconduct policies to create more gender-equitable institutions.
Following this letter, the newly hired Dean O’Neal Howard and her colleagues in the Office of Student Affairs worked in conjunction with the
National Council for Higher Education Risk Management to update
Occidental’s Sexual Misconduct Policy. According to O’Neal Howard the
policy was adapted from a broad, national policy to meet the specific
needs of the college. The changes included the aforementioned changes to
the Definitions section, as well as the unification of separate
policies (such as the Sexual Assault policy and Sexual Harassment
policy) under the umbrella of the Sexual Misconduct policy.
reaction to these policy changes in the fall of 2011, Professor
Heldman, several other faculty members and a group of concerned students
formed the Occidental Sexual Assault Coalition (OSAC) focused on
improving the sexual misconduct policy. “We [OSAC] submitted the most
comprehensive evaluation of sexual assault policies for any college
campus…” Heldman said. “The matrix evaluated every component of sexual
assault – of the sexual assault policy – at Occidental.” According to
Heldman, OSAC worked on their matrix over the Spring and Summer of 2012 and
submitted it at the beginning of the fall, at which point they learned
of the additional policy change to the appeals process.
fact that these changes to the Sexual Misconduct Policy went largely
unnoticed by faculty and students for so long is a point of concern for
both OSAC and the Office of Student Life. “I look at the educational
component and the fact that students didn’t notice all of the changes at
the time they were made and I say ’Well, what more can we do to get
that information out?’” O’Neal Howard said.
OSAC will continue working
raise awareness about policy changes and issues, and the Office of
Student Affairs plans to improve their communication about future
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