Author: Damian Mendieta
Occidental announced changes to its Sexual Misconduct Policy on Nov. 2, revising it to be clearer and more specific, according to Associate Dean of Students Erica O’Neal Howard. A legally-binding letter sent from the Office of Civil Rights (OCR) requiring colleges to include certain provisions in its harassment policies spurred some of the changes.
O’Neal said the new policy represents efforts to cover every imaginable situation.
“We don’t limit what can happen in this modern age,” O’Neal said.
Previously, there were two separate policies for sexual misconduct, one covering harassment and another covering assault. These new changes put all sex-related offenses under one uniform policy instead of two separate policies. The new policy is split into four levels of misconduct: Sexual Harassment, Non-Consensual Sexual Conduct, Non-Consensual Sexual Intercourse and Sexual Exploitation. Rape, previously covered under the now defunct sexual assault policy, is now classified in the new policy under Non-Consensual Sexual Intercourse.
“Sexual assault is the most egregious form of sexual harassment,” O’Neal said. “When you think about it, they’re really on a continuum.”
The policy review stemmed partly from the administration wanting to draft a clearer policy for the benefit of the Occidental community.
“What we did is we went back and said, ‘Are there things we can make clearer? More streamlined?'” O’Neal said.
The definitions of sexual consent and sexual misconduct have been further clarified in the new policy. A specific definition of when a student is unable to give voluntary consent to sexual activity because of the influence of alcohol or drugs is in the new policy.
“When alcohol or other drugs are being used, a person will be considered unable to give valid consent if they cannot fully understand the details of a sexual interaction (who, what, when, where, why or how) because they lack the capacity to reasonably understand the situation. Individuals who consent to sex must be able to understand what they are doing. Under this policy, ‘No’ always means ‘No,’ and ‘Yes’ may not always mean, ‘Yes.’ Anything but a clear, knowing and voluntary consent to any sexual activity is equivalent to a ‘no,'” the policy states.
The changes to Occidental’s Sexual Misconduct Policy were also influenced by an OCR letter sent last April. The letter mandated that colleges change their sexual harassment standards to comply with the standards they prescribed in the letter.
Colleges must adjudicate cases based on a more-likely-than-not standard of proof instead of higher standards of proof and add language allowing the accuser to appeal in all cases that the accused is allowed to appeal.
Occidental had already been using the more-likely-than-not standard, but many colleges maintained the “clear and convincing evidence” or the criminal standard of beyond a reasonable doubt.
The letter has sparked a lot of controversy. Victim groups applaud the policy changes, but critics argue that the OCR letter goes too far with its strict provisions. Foundation for Individual Rights in Education (FIRE) has passionately criticized the OCR letter, contending that its provisions will erode due process on college campuses, which FIRE says is already minimal. FIRE is also worried that the changes could affect the protection of free speech.
“[The letter] raises questions about OCR’s continued respect for the free expression rights enjoyed by students at our nation’s college campuses . . . Nowhere in Assistant Secretary Russlynn Ali’s letter are free expression concerns mentioned,” FIRE said.
FIRE also notes that the provision allowing accusers to appeal a finding of innocence by a judicial counsel violates the basic Constitutional protection of double jeopardy. The college has welcomed the OCR’s letter, saying that it presented an opportunity to improve its sexual misconduct guidelines.
“Across the country its made everyone sit back and look forward at our process. It’s made us strengthen our process,” Dean of Students Barbara Avery said. Avery also has said the college respects the free speech rights of the students.
“The Leonard law protects it [free speech], but it does not protect harassment,” Dean Avery said.
FIRE analyzes the ambiguity of sexual harassment policies at institutions across the U.S. and classifies policies with either a green, yellow or red light based on the threat to free speech. As of Feb. 2011, Occidental had a yellow light. 67 percent of colleges are classified as red light institutions, with few having yellow lights and even fewer maintaining green lights.
FIRE cites a recent case at Stanford University as an example of the recent effects of the OCR letter. Earlier this year, a student at Stanford was accused of sexually assaulting a fellow student. The Palo Alto police department investigated the accusation but later declined to continue their investigations. However, Stanford changed its standard of proof in the middle of the proceeding to comply with the OCR letter, before convicting the student of the offense. The student was suspended for two years but the accuser appealed the decision, asking for a permanent expulsion.
The case drew increased criticism from individual rights organizations after an anonymous student released information regarding how Stanford trains the student jurors that adjudicate these issues.
Part of the training materials lists “Indicators of an Abuser.” One of the bullets identifying a characteristic of an abuser is “act persuasive and logical.”
Individual rights advocates argue that such training prejudices the jury and makes a fair hearing and due process impossible. An article entitled “Stanford So Smart Its Rapists are Logical” contends that the accused cannot exercise their right to defend themselves when jurors are trained that using a logical and persuasive defense should be considered a sign of guilt. The article also argues that sexual assaults on campus are not easy cases to adjudicate, as on-campus incidents often deal with complex questions concerning when voluntary consent becomes involuntary consent.
Occidental administrators said they had no idea about the Stanford case and its connection to the OCR letter. However, they said that they choose not to include students in their judicial hearings because of the small community.
“We only keep staff and faculty involved,” Avery said. “They are sworn to confidentiality.”
Occidental has a long history of prosecuting sexual harassment incidents vigorously.
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