Disclaimer: The views and opinions expressed in this article are those of the authors and not necessarily those of Davidson College or Her Campus Davidson.
On April 15th, Dean Shandley provided students, faculty, and staff with both a newly proposed Sexual Misconduct Policy and a supplemental document explaining the impetus for creating the Task Force and the methods members used to draft the proposed policy. There are many factors that make critiquing the new Sexual Misconduct Policy a daunting and intimidating task. Namely, the supplemental report does not provide readers with a line-by-line comparison between the new policy and the old policy. The report also does not explicitly state which revisions were made to directly comply with existing legislation (i.e. the Clery Act, Title IX of the Education Amendments of 1972, and the Family Educational Rights and Privacy Act) and which revisions go above and beyond Davidson College’s legal obligations. Additionally, neither the Task Force Report nor the Frequently Asked Questions cite specific research justifying and explaining the Task Force’s revisions. Without this information, students must either trust the Task Force’s research and reasoning or take time to do their own outside research.
Because we understand that most students do not have the time or the experience required to closely read the policy, we are writing to express our concerns in hopes the student body can feel more educated about the proposed changes. After conferring with representatives of our Student Government Association, clarifying points of contention with Davidson’s Legal Counsel (and head of the Task Force) Sarah Phillips, speaking to survivors who have experienced the old process, and performing a close reading of both our old and newly proposed policies, we have concluded that our campus deserves a stronger policy. We deserve a policy so clear and effective that our peer institutions look to us as an example. We deserve a policy that changes the game.
Of course, we must give credit where credit is due. We will begin by enumerating the several positive changes in the proposed policy. First, the addition of a Table of Contents section and hyperlinks allows for students to more easily read and work with the policy. Second, the proposed policy also lists options for immediate assistance both on and off campus including specific on campus personnel and their varying levels of confidentiality. This information is at the beginning of the policy and helps students who are potentially disinterested in filing a formal complaint. Third, the proposed policy includes a specific section for definitions that clarifies potentially unfamiliar terminology. Fourth, the new policy includes a section detailing interim measures and their scope. Though the current Sexual Misconduct Policy does not explicitly discuss interim measures, the College currently mandates interim measures to de-escalate potential conflict between Complainants and Respondents before and during the Sexual Misconduct Policy complaint resolution process. The explicit, formal inclusion of interim measures in the proposed policy offers protection for both parties during the process. Finally, removing the President of the College from the appeals process protects both Complainants and Respondents by allowing an Appeals Officer with specific training to hear appeals.
Given that the Task Force did create improvement, we empathize with the community’s collective desire to pass a new Sexual Misconduct Policy before the end of term. Despite improvements, the Task Force retained, and in some cases created, vague and poorly conceived sections. Passing a policy that lacks specificity and transparency risks reducing students’ access to their rights and threatens to undermine the goals of revising our current Sexual Misconduct Policy. The document was designed to help Davidson create a community free of sexual misconduct and provide sufficient recourse for students who experience sexual misconduct. We urge students to realize that this policy serves an additional purpose: it provides a document through which students can hold Davidson College accountable for its standards, adjudications, and enforcement of its Sexual Misconduct Policy. Without both a clear policy and also clear supplemental materials, Complainants and Respondents alike have no ability to safeguard their rights.
Our goal in writing is to raise awareness about specific harmful aspects of the new policy that may negatively impact Complainants, Respondents, and the campus community as a whole. We strongly urge all interested parties to read and think critically about the issues and implications of hastily approving a new college policy. Further, if you believe that any of the concerns articulated below warrant at least revisiting the proposed policy prior to approval, we ask that you to sign this petition asking for a delay in the Student Conduct Council vote. Please include your class year or otherwise denote your Davidson affiliation in a comment with your signature. We believe the following sections should be reviewed immediately for clarification and content:
*Note: Where (SMP #) is cited, we are referring to a specific page in the new Sexual Misconduct Policy which can be found on Inside Davidson or in an email from Student Body President, Pablo Zevallos.
Concerning Definitions and Procedures Prior to Conferences:
Definitions of Consent: A necessary component for consensual sexual activity, as defined in the new Sexual Misconduct Policy, is an “affirmative, unambiguous, voluntary agreement to engage in a specific sexual activity” (SMP 10). However, the answer to what constitutes a “voluntary agreement” is unclear. The proposed policy maintains that consent can be given via “either explicit verbal consent or overt action,” meaning that our policy allows for non verbal consent (SMP10). This new definition allows for a gray area in the policy and on campus where a debate could arise about what a person intended to convey with their specific body language. The new policy should require a verbal definition of consent to remove ambiguity about what specific “overt actions” constitute consent. Requiring a verbal communication of consent provides parties assurance that their partner’s sexual activity is willing and voluntary and will help alleviate anxiety on campus surrounding what is and is not a violation of our policy.
Timeframe of the Investigation: The new policy stipulates that the college “make every effort to complete the investigation with 30 days” (SMP 32). We ask that this timeline include all calendar days including weekends. We also stress the importance of concluding all investigations within that timeframe barring extenuating circumstances (e.g. the presentation of new evidence). In that case, the policy should state that the college must notify all parties of both the elongated procedural timeline and also the reasons for the elongation. This clarification is vital. Students are likely to be under a great deal of stress during this 30 day investigation period, and as a result, their academic performance may suffer. Because of this, we worry Complainants may view the lengthy investigation as a disincentive to filing a formal complaint. We feel that guaranteeing a timely handling of all cases will encourage students to come forward. Additionally, Respondents may be under similar levels of stress and they deserve to have allegations handled as swiftly as procedural justice can allow.
Review and Response Procedures: Under the proposed policy, both the Complainant and Respondent are given access to the investigation report “separately in a private setting on campus” (SMP 23). Clarification is needed to ensure students have the right to access this information as many times as they need during the allotted time period. Students should be able to respond to the Investigative Report either orally or in writing, which will allow for students to be as articulate and specific as possible in their responses. We want to make sure that both sides feel the Investigator and the Sexual Misconduct Board will hear their voices. Additionally, restricting access to the Investigative Report marks a problematic departure from past procedure. In the past, Investigators provided parties with their own identical copies of the report. This is ideal as reading the report, which includes the other party’s position and statements from any witnesses, may have an extreme emotional impact on the students. Parties should be able to read this document in a space they feel is safe (e.g. in their dorm room, at a therapy appointment, etc.) to ensure they have the full capacity to read and understand in a non-pressured environment, and at their own pace.
Concerning Conference Scope, Content, and Procedures
Substituting the Term ‘Hearing’ for ‘Conference’: The proposed policy changes the traditional term “hearing” to describe the meeting of the Sexual Misconduct Board, Complainant(s), and Respondent(s) as a “conference.” While we understand that the Task Force may wish to de-escalate the proceedings, calling the process a conference minimizes the severity of the charges presented and delegitimizes the findings of the Sexual Misconduct Board. By moving away from disciplinary terminology, we worry that Complainants or Respondents can write off the procedures as invalid or insignificant. Put another way, the college would never consider calling an Honor Council Hearing a “conference” because that title is inappropriate given its formal and disciplinary structures.
Expert Opinion: The new policy allows the Chair of the Sexual Misconduct Board to redact expert opinion (SMP 22). This seems to prohibit therapists, hospital workers, police officers, and victim advocates from providing statements for a conference. According to Task Force representatives’ statements in an open Student Government Association (SGA) meeting, the emphasis in the phrase “expert opinion” is on the word opinion. This section is meant to bar experts from sharing “informed opinions” on, for example, intoxication levels and their effects on incapacitation. However, the policy reads as though it is allowing for the redaction of all expert knowledge. Task Force representatives clarified for the SGA that they intended to allow experts with first hand information to speak as third party witnesses. This must be clarified in writing. Otherwise, a Chair of the Sexual Misconduct Board may redact relevant information based on the witness’s title alone. Allowing for the categorical removal of these voices reduces the quality of evidence and can prevent the Respondent and Complainant from fully and completely representing their position. While the current Chair of the Sexual Misconduct Board might understand the difference between knowledge and opinion in an effective way, we would like to have “expert opinion” more clearly defined to both clarify terms for student parties and also to standardize procedure as much as possible.
Pledge of Confidentiality: The Pledge of Confidentiality allows for support persons but does not include Davidson students in this provision. This is a change from our last policy that we feel unnecessarily limits support for both Respondents and Complainants. Moreover, the Pledge of Confidentiality allows for disclosures that are legally permissible, but the policy does not explicitly state where students can read about their legal right to disclose. In 2011, The U.S. Department of Education clarified the scope of the Clery Act to state that victims could not be forced to sign a nondisclosure agreement or be prohibited from discussing the case in order to go through the college reporting process. This standard was upheld in a complaint against Georgetown, in which the Department of Education determined that the University could not require a nondisclosure agreement in order for victims to receive sanctioning information. This means that while assailants are legally within their right to sue for defamation, survivors are legally allowed to disclose the name of their assailant and discuss proceedings, including sanctions. Currently, Davidson’s policy requires all parties to sign a nondisclosure agreement as a precondition to begin conferences and then classifies Notices of Action (where sanctions are outlined) as strictly confidential. This means that Complainants may feel as though they must sign away their legal right to disclosure in order to participate in the sexual misconduct process. The new policy does not explicitly inform students of their federally granted legal rights, and ought to include this information in the list of Complainant Rights. Explicitly including these rights relieves students of the burden to read and understand dense legal information in order to exercise their rights.
Ambiguity and Lack of Transparency Regarding Redactions: The newly proposed policy still allows for unilateral redactions by the Chair of the Sexual Misconduct board. By not providing the parties a copy of the non-redacted Investigative Report, students have no method of viewing the redacted information to know whether the redactions constitute a procedural error (i.e. grounds for an appeal). Privileging redactions is often meant to protect personal information from the other party. To respect this function, we request that parties be allowed to view the redacted information about themselves so that they can make an appeal to the Chair if there is an issue, or, at a minimum, clarify why their information was redacted. In the event that parties have reasonable ground to believe information about the other party was unduly redacted, we ask that the Appeals Officer see the full, unredacted Investigative Report.
Concerning the Appeals Process
Definition of Appeal Officer: A new position has been added to the adjudication process for Sexual Misconduct cases. The Appeal Officer is now the sole individual responsible for determining whether or not an appeal will be heard. A single line is included in the policy to explain this role (SMP 12). Questions that need to be addressed by this Policy about the Appeal Officer include but are not limited to: Who is the appeal officer? How are they appointed? Is it the same person for every case? Is this person a new hire or will they regularly work at Davidson? What specific training will they have and how often will they be trained? Is there a guarantee of their job continuing despite the rulings they make? We want to be sure that there is no incentive to uniformly uphold the decisions of the Sexual Misconduct Board or challenge them.
Concerning Sanctioning Practices and Enforcement
Minimum Sanctions: The proposed policy does not contain minimum sanctions for specific violations or even suggested sanctions for specific violations. The language in the new policy states, “a fairly severe sanction might appropriately be imposed for a relatively minor violation which has been persistently repeated despite formal warning, while a relatively minor sanction might appropriately be imposed for a serious violation when substantial extenuation is shown” (SMP 25). What constitutes “extenuation” is never defined nor can the policy’s framers articulate clear applications. At the SGA open forum regarding the new policy, a student asked what kind of extenuating circumstance would lead to a minor sanction for a severe violation. The Sexual Misconduct Policy Task Force representatives failed to think of an appropriate example. For this reason, we do not feel that extenuation should be used as justification for imposing a minor sanction for a severe violation. We would encourage the policy to, at a minimum, suggest “as a general rule” certain sanctions for certain violations. This way, the Sexual Misconduct board does not lose their decision-making ability, but they gain recommendations and suggestions that offer continuity through multiple cases. We further request that Davidson specifically revisits sanctions for forced penetration. We find our college policies flawed if students can routinely be suspended for possession of a drug or cheating on an exam but not for the forced penetration of a fellow student.
Further, looking at college precedence, we are concerned that while social probation has been largely unsuccessful due to implementation and enforcement, the Sexual Misconduct Board has been loath to implement any sort of suspension. We are thus effectively left with few working sanctions on the more severe end of the spectrum.
We would also ask our campus community to remember that social probation is not just a punitive measure, but also a protective measure, meant to allow victimized parties to maintain safe spaces in campus.
Criteria for Sanctioning: The first page of the proposed policy lists two justifications for sanctioning: to create and maintain an environment free from sexual misconduct and to provide recourse for victimized students. Using these criteria, the policy should clarify the purpose for the listed sanctions so that the Sexual Misconduct Board can tailor their sanctioning decision to the appropriate goal (e.g. an apology may be given to provide the Complainant with recourse and suspension may be given to provide a safe campus environment). Additionally, explicitly explaining the purpose of the sanction chosen allows students better grounds to appeal, because they have context to gauge whether the sanction was “substantially disproportionate to the findings” (SMP 27). This would drastically increase both parties’ ability to hold the Sexual Misconduct Board accountable for their decisions. The new policy’s section discussing the imposition of sanctions has removed any criteria for implementing suspension or indefinite suspension. While the wording of the current policy is problematic, we do not feel that the criteria should be removed entirely. Without this criteria, it is almost impossible to discern substantial disproportionality, making the appeals process difficult to resolve and highly subjective.
Reporting Violations of Interim Measures and/or Sanctions: The new policy provides no information about the enforcement of interim measures and/or sanctions beyond stating, “failure to abide by restrictions imposed by an interim measure or additional remedy is a violation of the Code of Responsibility” (SMP 19). The policy does not address which college offices enforce sanctions and interim measures that may be more difficult to monitor, such as social probation or limitations on where students are permitted to be on campus. Additionally, the new policy includes no information regarding what consequences will result if a student is found to have violated those sanctions. A possible enforcement mechanism is student reporting. The proposed policy states “all individuals are encouraged to report concerns about failure of another individual to abide by restrictions imposed by an interim measure or additional remedy” (SMP 19). Because Complainants, Respondents, and witnesses sign a confidentiality agreement that precludes the disclosure of information regarding sanctions or interim measures, we worry that the only individuals aware of the sanctions (and thus the only students in a position to report violations) may be the same students the sanctions are designed to protect. This means that Complainants, Respondents, and their support networks may feel that the onus is on them to know about and report violations of sanctions, interim measures and additional remedies.
To address this concern, we propose that Patterson Court Organization (PCO) Presidents and Vice Presidents receive a list of students each month who are prohibited from being at Patterson Court events. Similarly, all relevant RLO student employees should receive lists of students who should not be present in their duty areas. PCO leaders and RLO students frequently have contact with the administration and work with sensitive, confidential information. Providing them with relevant sanctioning information takes the burden off of Complainants, Respondents and their support networks. Because our police force is small and due to the Dean of Student Office’s limited involvement in Davidson’s social scene, we feel that this provision will greatly increase the efficacy of sanctions, interim measures and additional remedies.
Additionally, we recommend that the college insert a “Good Samaritan” clause to clarify that no inquiry would be made by the College into how a student was made aware of any interim measure and/or sanctions and that no judicial board action would be pursued on the basis that a pledge of confidentiality may have been violated. We understand that this may raise privacy concerns. However, sanctions and interim measures given to students for sexual misconduct are also prescribed for other violations of the Code of Responsibility, meaning that disclosing the sanction does not necessarily tie the individual’s name to acts of sexual misconduct. We believe that in this case campus safety ought to be prioritized and the two additional methods of enforcement proposed would help preserve students’ right to safety in a way that substantially outweighs perceived threats to a student’s right to privacy.
Finally, we ask that the college increase transparency surrounding Judicial Board hearings for sanction and interim measure violations. For sanctions to have meaning, we must be assured that they will be enforced. Taking steps to increase responsible student and college accountability will help us come closer to that goal.
Concerning General Procedures and Best Practices
Training of the Sexual Misconduct Board/Investigators: A section of the new policy details that all college officials involved in the “complaint resolution process shall receive annual training on this policy and issues related to sexual misconduct” (SMP 34). Vice President Sarah Phillips suggested that attorneys from McGuireWoods would help design this training to build upon Davidson’s existing programming. We would like this training to be modeled off of existing, successful training programs from peer institutions and ask that all relevant research used to form the program be available for students to view. We do not request adding specific training requirements to the policy, as we see the utility in allowing the training program to be revised over time, but we would like to add a provision that makes a summary of current training curricula available to students. This provision would allow the student body to continually critique and challenge the college to improve upon or expand the scope of the training. We believe the potential for student input will facilitate the goal of keeping annual trainings relevant and sensitive to cultural changes and conversations occurring around the issues of sexual misconduct. Finally, understanding the perspective of Sexual Misconduct Board members can help the Complainant and Respondent better prepare for and understand outcomes of conferences.
Annual Summary Publication: A benefit of the new policy is that the college will publish “a three-year summary including the number of sexual misconduct reports received by the Title IX Coordinator, the number of sexual misconduct complaints filed with the Dean of Students Office, and the outcome of complaints filed (including the finding and sanctions, if any)” (SMP 7). This is a great improvement in terms of creating more transparency in the Sexual Misconduct Policy adjudication process. As written in the policy, however, this publication will not include information about appeals and the outcomes of appeals. We encourage the College to include appeals information in this annual report as a method to help uncover any potential systematic biases in the decisions made by the Sexual Misconduct Board or the Appeals Officer. We also would like this report to come out during a semester to increase community engagement with the document and to ensure that concerned students have the opportunity to meet with relevant administrators (e.g. the Title IX coordinator, Dean of Students, etc.).
Policy Clarification for Sexual Misconduct Between Students and Faculty or Staff: The new policy states “any individual may file a formal complaint against a student for an alleged violation of this Policy” (SMP 20). The proposed policy does not address cases of sexual misconduct between students and faculty or staff. Because the policy does not aim to deal with this type of abuse, a specific section should be included articulating the resources for students and methods to address such abuses of power. The current policy directs readers to the Davidson College Sexual Harassment Policy in cases where the accused is a faculty or staff member. If this information is still accurate, it should be included in the new policy.
There remain other issues with this proposed policy to be critiqued, deliberated, and improved upon. We have attempted to provide in this article information on some, not all, of the issues we find important. While the policy is long and detailed, we encourage the student body to read the policy and send any questions, comments, critiques, or suggestions to the Sexual Misconduct Policy Task Force (smptaskforce@davidson.edu). Again, please consider signing our petition to encourage a more careful consideration of the proposed policy:
If you would like to discuss information, critiques, or proposals included in this article, please email Abby Peoples (abpeoples@davidson.edu), Madi Driscoll (madriscoll@davidson.edu), or Susanna Vogel (suvogel@davidson.edu). By working together as a community, we are confident that the Davidson College Sexual Misconduct Policy can be improved in such a way that it becomes a model for other institutions and becomes a policy that changes the game of adjudicating and enforcing sexual misconduct policies at institutions of higher education.