Bright lines and grey areas

by Susan Rosenberg

Sexual misconduct occurs on every college campus. Lately it's been making big national headlines and spurring new legislation. But college administrators have been grappling with sexual wrongdoing for years, both to keep their campuses safe and respectful places and to comply with laws requiring them to respond to and adjudicate such matters in specific, mandated ways.

Skidmore's Sexual and Gender-based Misconduct Policy begins by asserting, "Members of the Skidmore community have the right to be free from all forms of abuse, assault, harassment, and coercive conduct" and continues, "Unwelcome sexual contact of any form is a violation of students' personal integrity and their right to a safe environment." The policy hinges on consent and defines it in detail, emphasizing that it must be freely and actively given in a clear and mutually understood way.

Last year at Skidmore, seven reports of sexual or gender-based misconduct were adjudicated on campus. Other in­cidents likely occurred but weren't formally reported for action.

A number of factors may contribute to sexual offenses. Experts agree that alcohol or drug use by one or both parties is frequently involved, impairing judgment, communication, or motor function. Also, first-year students in particular are in "a vulnerable place in life," says Maggie Fronk, executive director of Wellspring, a sexual-violence crisis center in Sara­toga Springs. "In sudden isolation from old norms, new students may feel a need to make friends fast. Then add alcohol and hormones to the mix…"

According to Erin Dagle, Skidmore's assistant director of student conduct, even before they come to college, students "have habits and attitudes well ingrained. They may have never had good conversations about how to develop healthy relationships and negotiate intimacy."

That also concerns Rochelle Calhoun, who has been dean of students and vice president of student affairs for seven years, before moving this September into a VP position at Princeton University. She stipulates, "Of course it's not the victim's responsibility if someone commits an offense, but we do caution students not to go out alone at night or leave their drinks unattended. Still, at Skidmore, my larger concern is reminding all students not to get physically intimate with someone they don't know intimately enough."

Advice and consent

More and more, education efforts toward preventing nonconsensual activity have become familiar ingredients of the Skidmore experience. In an email to the extended Skidmore community, President Philip Glotzbach last March cited such initiatives, as well as bystander intervention training and more publicity for the support and reporting resources available on and off campus. First-year orientation is now an expanded First 6 Weeks program, which covers alcohol use, community and academic integrity, and sexual misconduct.

Dennis Conway, director of campus safety, also points to a weekly meeting with staff from his office, campus life, academic life, and health and counseling, where "we confidentially talk over any students who are worrying us and how we could coordinate helping them." He says, "It's hard to fall through the cracks at Skidmore."

The health-promotion office prints sexuality pamphlets and has a lending library. A comprehensive website articulates proper conduct and lists resources for responding to bad conduct. Further, the residential life, health promotion, and counseling staffs offer workshops and oversee peer-to-peer training and outreach about sexual relations.

Last year's fourth open campus forum hosted by the faculty-staff-student Advisory Council on Sexual and Gender-based Misconduct was facilitated by Crystal Moore, a social-work professor (and associate dean of the faculty). Moore says, "It's not easy for people to talk about this issue. It raises questions of values, victimhood, gender and inequity, sex and power—it strikes us in a very emotional place." Nevertheless, says forum panelist Julia Routbort, who directs the counseling center, "We had a candid, nuanced discussion about balance between individual vs. community rights and how a group culture can change over time. It was the kind of conversation that makes me glad I work at Skidmore."

Addison Bennett '16, last year's Student Government Association president, says that SGA "made it a goal to get students talking about sexual misconduct and help dispel the idea that Skidmore is somehow immune. I think we made serious strides." SGA's campaign called It's Happening Here brought two guest speakers, and Bennett collaborated with senior-class president Soraya Attia '15 on a survivor tribute night, where some 200 survivors and supporters "gathered to share songs, words, and poems," says Attia. "It was such a beautiful event."

Newspaper interviews given by a Skidmore student who filed a sexual misconduct report last year, and who felt the sanction levied against the violator was too light, drew considerable student and alumni attention as well. In response, last March a two-hour webinar on Skidmore's sexual-misconduct procedures engaged some 90 alumni and parents with administrators who answered their questions, though they were legally bound to confidentiality about specific cases.

Beyond campus, Skidmore maintains a relationship with the Wellspring crisis service, has a formal memorandum of understanding with the Saratoga Springs Police Department, and participates in a local group led by James Doern '87. A domestic-violence court judge, Doern says he regularly invites reps from Skidmore, the district attorney and public defender, sheriff and police, local Navy base administrators, and state and local agencies "to work on sharing ideas, bringing in trainers, and coordinating resources."

Where to turn

Rule-setting and outreach, of course, can't always prevent sexual misbehavior. When it does happen, victims are urged to report it immediately and take advantage of the resources available to help them. Those options are numerous, both to serve a wide range of student needs and to comply with federal and state regulations, including Title IX. Best known for mandating gender equality in school and college athletics, Title IX also covers sexual harassment and misconduct in educational institutions.

When she joined Skidmore as dean in 2008, Calhoun wanted to upgrade the college's policy, especially "to ensure that survivors' voices were really heard." She consulted widely and partnered with President Glotzbach to establish a task force, and by 2010 a new policy was vetted and approved. As Skidmore's student-diversity programs coordinator, Mariel Martin played a role in the policy revision and then agreed to be trained and deputized as the campus Title IX manager. "So in 2011," she says, "we were ahead of the game when a federal letter further specified colleges' responsibilities for combatting sexual misconduct under Title IX."

Skidmore's revised policy succeeded in encouraging more victims to report. One or two had been the typical caseload in previous years, but Martin says, "As soon as I officially became the Title IX deputy coordinator, we started getting 10 to 20 reports a year. Now I spend more than half my time on Title IX work."

In conformity with Title IX—and with the Clery Act requiring colleges to publish a summary of all campus crimes annually, and the Family Educational Rights and Privacy Act requiring colleges to maintain the strict confidentiality of student records—Skidmore's policy provides for "immediate action to eliminate the sexual harassment or violence, prevent its recurrence, and address its effects"; establishes disciplinary procedures that ensure fairness to both the reporting individual (the person alleging misconduct) and the responding student (the person accused of misconduct); requires campus adjudication even if a criminal case is also pursued by either party; provides a range of accommodations to help the reporting person continue studying in a safe environment; and designates an employee as Title IX coordinator. The policy has been reviewed by Skidmore's legal counsel and by an independent law firm, and their suggestions were incorporated to ensure full compliance as well as fairness to all parties.

The college also offers confidential reporting that needn't trigger a formal investigation or hearing. Either way, it promises help and support with medical or legal procedures and commits to continue that support after the case ends, for as long as the survivor desires. "Our policy is strong. And we're developing more options to help students control, as much as possible, how they heal, recover, and return to learning," says Erin Dagle in the student conduct office. "It encourages students to come forward." (One more incentive: Skidmore and the Saratoga police promise amnesty regarding alcohol or drug use for those reporting sexual misconduct.)

As health promotions director, Jennifer McDonald has surveyed the student body and found that the prevalence of sexual wrongdoing stayed about steady over the past several years, but resource-seeking and formal reporting are indeed up dramatically. Also changing is that men are reporting more than they used to, and the most common first call by victims is not to campus safety but to the health or counseling center.

Another common early call is to a victim advocate—either McDonald or a colleague in her office. Both are trained in helping victims of sexual misconduct and in talking them through their options, including any, all, or none of: medical care, consulting with campus safety and/or local police, on- or off-campus counseling, filing a report, requesting a no-contact order against an accused student, and receiving campus accommodations such as exam postponements or residential changes. Victim advocates remain available regardless of the outcome of an investigation or hearing.

Legally confidential reporting resources are the health and counseling staff and chaplains; victim advocates can take anonymous reports as well. Trained peer health educators are also confidential except that they must pass along incidents for statistical record-keeping, without identifying details. (Anyone who hears reports is obligated to reveal information in rare instances involving serious, imminent danger.) Off campus, the Wellspring center is confidential and knowledgeable about Skidmore's policy and offerings. Saratoga Hospital, Planned Parenthood, and the New York State Sexual Violence Hotline are confidential agencies too. 

Reports made to others—professors, coaches, campus safety officers, resident assistants, peer mentors or tutors—must be disclosed to the Title IX coordinator, who must fulfill Title IX requirements for taking action. Reports may also be filed for formal action with the US Education Department's Office of Civil Rights or the Saratoga police. Martin says, "Usually the best first step is a confidential resource. That way the survivor keeps control of whether the process goes any further."

Fronk sees Wellspring as a complement to Skidmore's services. "We operate 24/7, and we're a victim-only agency, whereas Skidmore serves all its students, including both parties in a sexual misconduct case." Skidmore regularly calls on Wellspring when criminal justice action is needed. Says Fronk, "We can help with pro bono lawyers, restraining orders, and preparing for court dates."

In practice, not many reporting individuals seek legal remedies. Routbort says, "The criminal justice system takes a long time, and survivors typically want to get back to being students." Martin adds, "That system doesn't help with an extension on a term paper or getting counseling—that's what Skidmore's process can provide."

As an advocate, McDonald explains, "I can ask a professor for a switch to a different lab section or ask the res life office where the other party will be living next semester so the victim can choose a different building. Victims don't have to explain anything. When I call on their behalf, usually people just make it happen, no questions asked." When victims want to file a complaint, McDonald says, "I try to walk them through the process two separate times so they know what to expect, and then set up a meeting with a nonconfidential resource for a formal report."

Skidmore's entire policy is reviewed and adjusted at least annually, and it was essentially already in compliance with the New York State legislation passed last summer to apply a uniform policy to both public and private colleges throughout the state. One language alteration is that Skidmore's "effective consent" changes to the state's "affirmative consent." And among other provisions, the state law requires amnesty for drug or alcohol offenses by reporting students, directs colleges to enter a note on the academic transcript of any student suspended or expelled for a sexual violation, calls for more notifications and disclosure by colleges, and levies new penalties for colleges' noncompliance.

Formal procedures

How is a violation determined? Dagle says, "First we sit down with the reporting individual and go through our intake checklist, discussing all the options." One or more trained investigators—Martin and Dagle in student affairs, and Conway and a colleague in campus safety—asks for names of any witnesses, conducts interviews, and tries to determine the facts of the case.

"These investigations are delicate and difficult," says Conway. "They're time-consuming, because we want to do them right." There's rarely a witness to the incident itself, but someone may be able to describe the parties' behavior before or afterward. Along with interviewing, investigators seek out texts or emails, check the times of key-card swipes in residence hall doors, and collect other information. Investigations typically take five to 10 days, and then a detailed report—often 50 pages or more—is sent to the reporting and responding students for their comments.

Both parties are urged to choose and consult with a staff or faculty volunteer expressly trained to advise reporting or responding students. "It's difficult for college-age students to openly discuss their sexual experiences," says Jamin Totino, director of student academic services and an advisor for responding students. "The difficulty is compounded when a student is charged with a violation and needs support from someone who is essentially a stranger." Part of his role, he says, is simply "to sit with these students and be in the moment with them."

Once the investigators' summary is issued, Dagle or a colleague convenes a hearing board of three trained campus volunteers, making sure to include gender diversity. Students may petition for a recusal if a board member knows them or might be unable to hear the case impartially.

A hearing may last three hours or so. During its course, witnesses may be waiting in a nearby room, and lawyers or advisors in other rooms. On occasion a screen is placed to separate the reporting and responding participants in the hearing room (videoconferencing can be used if one party can't get to campus or if there's any safety risk to bringing both into a room together). All hearings are audio-recorded, in case that record is needed by either side in lodging an appeal afterward.

The chair of the hearing, and either student, may suggest a recess at any time.

During a recess, recording gear is switched off and board members can discuss among themselves what they've heard so far and what else they'd like to learn. It's also an opportunity for the students to talk with their advisors. As advisor Totino notes, "Though cases are handled confidentially, responding students tend to feel that everyone knows about the situation and has already concluded they're in violation. They're concerned about social stigma." Reporting students and respondents alike "are in pain and struggling to cope with sensitive issues," he says.

A frequently misunderstood principle of these proceedings is the Title IX standard of evidence. Unlike court cases that may be decided on the basis of "clear and convincing" proof or criminal law's "beyond a reasonable doubt," campus sexual misconduct is decided on "a preponderance of the evidence"—that is, a greater than 50% likelihood. If board members are not more than 50% certain, then they must decide "no violation."

After a hearing, the board has up to 10 days to deliberate and render a decision and, if a violation is found, to levy sanctions. Students may file an appeal for review by an appeals board, as long as their argument is based on new information, procedural error, or a disproportionate sanction. Whenever the sanction is suspension or expulsion, that decision is automatically reviewed.

Another legal fine point is that the determination after a hearing becomes part of the educational record of the responding student and therefore protected from disclosure by FERPA; however, Title IX and the Clery Act require that the reporting individual be informed of the hearing's decision and of any sanctions affecting that individual, such as a no-contact order. 

Consequences and accommodations

Students found in violation are placed on disciplinary probation until all sanctions are completed or lifted. Violations may limit one's eligibility for academic honors and prizes, student leadership posts, or the campus room selection process. Off campus, graduate admissions offices, security clearance procedures, and employers in law and related fields often request not just transcripts but also conduct records, and a violation noted on either document can be a door-closer.

Skidmore hearings have resulted in expulsions and a range of lesser sanctions—for instance, psychological assessments, restrictions on contacting the victim or using particular campus facilities, education such as gender-relations seminars or substance-abuse programs, service projects, and closely guided self-reflection exercises and essays. Such sanctions may be completed during a suspension or on campus with monitoring and enforcement by the student conduct office.

"With truly deliberate or violent acts," says one hearing board panelist, "no sanctions will likely change that person. All we can do is try to make the college safer by removing that person from campus." SGA president Bennett says many of his peers would prefer that "anyone found responsible for sexual misconduct be removed from the community." President Glotzbach has considered that but agrees with Dean Calhoun's assessment that "each case has unique circumstances, such as force vs. in­capacity, previous records of conduct, nuances of relationships. We want to respect each experience and assess it on its own terms."

Calhoun points out that each victim's preferences are sought and weighed during sanctioning. And each victim is foremost in her mind. "Other colleges have found and students here have told me that they would not have come forward if there were an absolute sanctioning system. It's not always a complete stranger they're accusing; circles of friendship are complex. So it's hard for them to report. We don't want to add a barrier to reporting."

From the counseling center Routbort reports, "Although the sanctions are often what the victims asked them to be, it's rarely as satisfying as they might have hoped." The lead-up to a hearing "can give students a sense of purpose or mission, and then suddenly it's over." And while the event was a very personal trauma, the hearing is as much institutional as personal, which can "feel like a disconnect." Also, Routbort says, experiencing a trauma may be "a clear before-and-after moment in their lives. It changes them. And when that realization hits home—that the harm can't simply be undone—they can find themselves coping with anger and sadness."

As for respondents, advisor Totino says, "Students' fears sometimes get the best of them. They tend to feel that a mistake, if they made one, defines their identity.

Because of their limited experience, it can be difficult to get them thinking beyond their current crisis."

The fact is, everyone involved needs a coping strategy. Fronk says cases of sexual wrongdoing are "very complicated for people who are professionals in dealing with them, let alone for volunteers." Dagle admits, "When you're listening to accounts from both parties, you can't not empathize with their distress." And confidentiality is a burden too: "When most people have a hard day at work, they go home and tell their family or friends about it. We can't do that." Even if a principal in a case chooses to go public, college personnel cannot comment or reveal any information.

Martin routinely fields phone calls from distraught parents and assertive lawyers. "Unless the students have explicitly waived their privacy rights," she says, "all I can talk about are our policies and general procedures. And that can really frustrate a parent whose child has been accused or has experienced a trauma. So if someone needs to vent for half an hour, that's OK." She adds, "During the various phases of a case, parents may hate me, then love me, then hate me. I'm fine with that. My first responsibility is to the students."

"I got into student affairs because I care about students, and I got into diversity affairs because I care about fairness," Martin continues. "Ensuring fairness for both sides in a sexual misconduct case can be challenging but it's critical." In the end, she says, "I'm glad to be part of a system that acknowledges how real this problem is for us all, especially students, and to be part of a group of dedicated people working to help students heal and grow."

Changing codes and cultures

Professor Crystal Moore declares, "I just wish folks could have been in the room during last year's policy review, to see what I saw: the care and thought that Skidmore people apply to this thankless, difficult, valuable work." Soraya Attia, as a student rep in that room, says the other advisory council members quickly opened their minds to student input. One change the students argued for was an expansion of the policy to cover emotional abuse. In addition, Attia was "very happy that instead of just naming the sanctions, the hearing boards now have to explain why they're imposing them, which will give those on both sides a better understanding of how the board came to that outcome." Attia recalls that "going through the policy line by line was hard and took time but was very worth it. It feels great to know how much voice students do have here."

Skidmore's collaboration with Wellspring is another "really positive development," according to judge Jim Doern. For members of the college community reporting an incident, he notes, Wellspring is entirely independent and perhaps "a good first option." Having found that students "tend to see Wellspring as farther away than we really are," Fronk is as pleased as Skidmore staffers are about having a Wellspring presence right on campus starting this fall. The plan is for a crisis support specialist and an education and outreach specialist to take turns on campus, probably for a few hours a day, three days a week.

With any formally constituted procedures, armchair jurists can always imagine revisions. At Skidmore, Title IX's "preponderance of evidence" or "more likely than not" standard is much debated. Safety director Conway and others say they're uneasy about the low threshold of preponderance. At the same time, many campus incidents do not qualify as rape but instead involve ineffective consent or other grey areas, and for those cases "beyond a reasonable doubt" may be too high a bar.

All agree that the only good solution is prevention. "This is a rough subject for students," Attia says, "but we need to have open dialogue." SGA's Bennett looks forward this year "to supporting student activism and also pivoting the conversation to the larger issue of community safety and values." The sexual misconduct advisory board is expanding training for students, staff, and faculty, with a goal of at least three offerings per year.

From her wider community vantage point, Fronk laments "the reactivity of the public" to sensational or fragmentary media accounts but says the publicity has raised awareness of the issue. Martin hopes the awareness will inspire earlier education—"starting with playground negotiations and building up to how to have a truly consensual sexual in­teraction." And Calhoun agrees, calling middle and high school "a critical time in the development of people's sexual identities and relationship skills. Education in those years would be an excellent complement to the work being done on college campuses."

For now Calhoun feels confident—as does her interim successor as dean of students, athletics director Gail Cummings-Danson—that "people at Skidmore recognize this issue is not just about a policy but about campus culture and the responsibility we all have to each other. Everyone has a role to play in eradicating bias and mistreatment."