Changing views on sexual misconduct leave colleges vulnerable, accusers and accused frustrated

It’s hard enough to teach academic subjects to thousands of young people at a typical college or university; throw in hook-up culture, alcohol and differences in what constitutes “consent” and the job becomes a lot more complicated. Like others, the University of Michigan at Ann Arbor is struggling to address sexual assault issues among students. (Bridge photo by Nancy Derringer)

ANN ARBOR -- If you haven’t been around members of the millennial generation for a while, you might be in for some surprises.

They’re amazingly tolerant, for one thing, broadminded in a world that requires nothing less. They respect differences. In this particular session of “Change it Up!,” a diversity-education training program required of all University of Michigan freshman, students are happily providing examples of the many daily chances to do offense to someone different from them, or of when offense was done to them.

In an Angell Hall amphitheater before a couple hundred of her peers, a girl rises to announce she’s bisexual, and tired of being judged over it. Another mentions a transgender high school classmate being asked to wear a graduation gown in a color worn by the gender he wasn’t. Ability privilege, that’s a thing now, too; if you can get around without a wheelchair or white cane, you have it. A girl says she needs to consider her own ability privilege more often.

And in their attitudes toward sex, these millennials have a different take than, say, their grandfathers, who might have chortled, “Candy is dandy, but liquor is quicker” when romancing a woman. When, during a Change it Up! role play, a male student goes to make a move on a girl he’s been eyeing after she pours herself a second glass of jungle juice at a party, his friends step in, and quickly. Why?

“A person who is drunk cannot give consent,” several in the crowd call out, to widespread agreement.

This was on a Thursday night in November. The following night, the weekend started, and at bars and parties all over Ann Arbor, the finer points of consent were being negotiated on a far more slippery slope.

A parade of campus crimes

Campus sexual assault is drawing attention these days all the way up to the White House; in September, President Obama himself announced the “It’s On Us” campaign to end sexual violence at American colleges and universities. In his remarks, Obama said that one in five women will be assaulted during her college years, and only 12 percent of those will be reported.

Here in Michigan, sexual assaults on college campuses reported to the federal government remained steady in 2013 after rising by 29 percent in 2012, according to data submitted by the institutions. The increase came after the Department of Education Office of Civil Rights’ so-called “Dear Colleague” letter of 2011, when universities were put on notice that sexual violence and harassment is a violation of Title IX of the Education Amendments of 1972, and that failure to address the issue left schools open to sanctions from the federal government, including the loss of federal funding.

Hardly a week goes by without some newspaper or publication taking on what sound like jaw-dropping cases of violent assault on campuses, or reaction to them. A recent Rolling Stone report opens with a vividly detailed student victim’s account of a 2012 gang rape by no fewer than seven men in a University of Virginia fraternity house – an account that went largely ignored by the elite university, and as yet unpunished. (Note: The account has since been called into question, and Rolling Stone is admitting to "discrepancies" in the alleged victim's story.)

The New York Times investigated a case at Hobart and William Smith Colleges in upstate New York, where a female student claimed an assault by multiple football players, a charge supported by physical evidence – that also went unpunished. At Columbia University, a female student is carrying her dorm mattress everywhere she goes on campus as a symbol of her frustration; she says she was raped on it and the university botched the investigation. Adding further complexity to the issue, recent months have also brought a number of complaints from male students accused of sexual misconduct, who claim that they were railroaded by overzealous, agenda-driven campus discipline boards eager to show they can be tough on accused sex offenders.

Closer to home, a U.S. Department of Education list of colleges under investigation for potentially failing to address the problem included some of the most elite schools in the country, including the University of Michigan and Michigan State University.

U-M officials contend this does not indicate a worsening problem on campus, but rather, evidence of U-M’s increased emphasis on reporting and openness. However, the case of Brendan Gibbons, a former placekicker on the Michigan football team, brought new attention to how the university, like others, investigates and disciplines – or fails to adequately discipline – students accused of sexual assault.

Gibbons was accused of raping a female student in November 2009, when they were freshmen. But he wasn’t disciplined – with expulsion – until four years later, in December 2013, conspicuously after his eligibility to kick footballs had nearly expired. Gibbons was never criminally charged.

To advocates for sexual-assault victims, cases like Gibbons’s represent a too-common scenario on college campuses, where alcohol, young people and the first freedom of adulthood combine to endanger the safety of students, overwhelmingly young women – and are too often not appropriately punished, or punished at all.

After a recent Rolling Stone article revealed an alleged gang rape at a University of Virginia fraternity house that went unpunished, protests and reaction abounded on the Charlottesville campus, including this event outside the fraternity in question, Phi Kappa Psi. (Photo by Flickr user by Bob Mical, used under Creative Commons license)

Whose job to handle?

The 2011 “Dear Colleague” letter did more than inform schools of the consequences of non-compliance. It also laid out a grievance procedure that institutions must provide students who make claims of sexual assault, harassment, stalking or other misconduct against their peers. Controversially, those grievance panels must use the OCR’s “preponderance-of-evidence” standard to find that misconduct occurred, a lower burden of proof than the “beyond a reasonable doubt” bar set in criminal cases.

U-M set up a procedure adhering to the OCR’s suggested guidance, and made it permanent last year. Today, a student who has been assaulted or otherwise believes he or she has been victimized, has a number of options.

The Sexual Assault Prevention & Awareness Center provides confidential reporting and support, with law enforcement involved only if the student requests it.

Leaving the role of law enforcement involvement up to victims of assault is very much by design. Holly Rider-Milkovich, director of SAPAC at U-M, wrote in a New York Times op-ed on the subject earlier this year, “The criminal justice system alone is simply not effective enough to keep young people safe. Pernicious victim-blaming attitudes and myths about ‘wanted’ sexual assault still permeate our entire culture, not just our campuses. ...There are plenty of behaviors that survivors report that are offensive, discriminatory and damaging, even if they are not against the law.”

At U-M, students may be encouraged by SAPAC counselors to notify police, but there is no automatic reporting requirement; the question of whether to report is left entirely up to the person who was assaulted.

If the victimized student calls 911, or the report comes from a third party – perhaps a bystander – the case will wind up in another U-M office: the Office for Institutional Equity, where the university’s Title IX coordinator works, and which monitors Title IX issues.

Sanctions, if any, are handled by a separate entity, the Office of Student Conflict Resolution, where assault, harassment and other misbehavior are referred to collectively as sexual misconduct. (The OSCR also deals with other areas of conflict.) A student who seeks help from SAPAC is under no obligation to take his or her case to either of these offices, although many do.

It can be a confusing warren to a layperson, in part because the offices and procedures can cover everything from criminal activity like violent rape to bad blood between roommates. And recent events like the UVA and Hobart and William Smith cases raise the question of whether the parties who adjudicate the cases are qualified to do so.

In late November, the U-M Office for Institutional Equity released its first report separating sexual misconduct data from other criminal or conflict data. From July 1, 2013 through June 30 of this year, the report said, 129 reports of sexual misconduct were made. Of that number, 68 involved sexual assault, defined as “unwanted or unwelcome touching of a sexual nature, including hugging, kissing, fondling, oral sex, anal or vaginal intercourse, or other physical sexual activity that occurs without valid consent.” Other categories sexual harassment, stalking, retaliation or “other.”

U-M’s records show that 100 of the 129 reports were either dismissed by the university for various reasons or withdrawn. The school issued some form of sanction in 27 cases, ranging from probation to the case of one student who was expelled for what is described as sexual assault with penetration.

What’s going on?

By their very nature, college campuses are volatile environments. But with sexual misconduct covering everything from hugging to penetration, how dangerous are they in the current environment?

“What I face is more street harassment,” said Ashley Schwedt, a 27-year-old graduate student at U-M. “That’s unfortunately rather common around campus. There’s a lot of ‘honey’ and ‘baby.’ Today someone called me a f---ing lesbian while I was out running.”

If Schwedt cared to slow down, take notice of the catcaller and find out his name, and if he was a student, she could bring action against him under the new system; such behavior constitutes sexual harassment.

As Rider-Milkovich pointed out in her op-ed, sexual misconduct on a college campus may or may not involve law enforcement, as it may or may not be a crime; the term encompasses everything from rape to stalking to groping to verbal abuse, and it can quickly become confusing in, for example, the scenario suggested in the Change it Up! training. If a young woman cannot give consent when she’s drunk, does that mean after one drink? Two?

The problem is complicated by the fact that outside of college campuses, adults use alcohol to lubricate social situations all the time, and don’t necessarily consider themselves taken advantage of afterward. Schwedt, who is also a Change it Up! trainer, is aware of this paradox. But she defends training college students to consider zero tolerance of alcohol in sexual situations.

“It’s hard to remind men that it’s their responsibility” to keep their impulses under control with a classmate who’s been drinking, especially if the men have been drinking as well. But it’s necessary, Schwedt said.

“People know that consent cannot be given or received when people are under the influence,” she said. “The intent isn’t evil, but the impact can be terrible.”

In the role play in the November training of the man making a move at a party, his friends counsel him to hold off making his move on the woman until after the class he shares with her – when they’re both sober. It’s a way, Schwedt said, to challenge both men and women to question their attitudes about sex and relationships.

Practice safe socializing

That’s what the university-ordered training programs at U-M – besides Change it Up!, there’s another required training called Relationship Remix – try to address, said Rick Fitzgerald, U-M spokesman.

“We’re taking some pretty extraordinary measures, and leading the pack on the educational efforts,” Fitzgerald said. “We have had an online component that new students have to complete before they come to campus, (as well as) bystander intervention efforts. It’s consistent with the White House program.”

Fitzgerald said the move-in period for freshmen at the beginning of the school year was shortened to two days, to limit the amount of unstructured time before classes start. The concern is valid; at least eight freshmen nationwide died in the first week of school this year, including Jiayi Dai, a Michigan State student from Beijing, who died of alcohol poisoning before classes started.

But Fitzgerald contended that beyond education efforts, there is little the university can do about off-campus drinking at fraternities and sororities, the frequent site of parties, and sometimes assaults, including the one in the Gibbons case.

Although some students involved in Greek life say that those organizations try to do their part, too.

“Greek life is very good about educating on this,” said Miranda Zeneli, a sophomore who belongs to the Gamma Phi Beta sorority. “We have to do an online workshop and quiz, and you have to get 100 percent on it, or you do it again.”

Still, she added, alcohol is simply a fact of life on and off college campuses, and while blackout drinkers are not uncommon, “That’s the minority who stands out the most. People don’t remember the person who had one drink and went home.”

Neither side happy

With so many ways to seek justice, why do so many horrifying cases keep turning up?

In the Hobart and William Smith Colleges case investigated by the New York Times, the victim complained that she had no advocate in her Title IX hearings, which proceeded with little regard for traditional safeguards afforded by the legal process. In other cases, men are claiming that their due process rights were violated, including one prominent lawsuit raging from an incident at a U-M dorm.

“What I’ve read is that different universities are differently equipped to deal with this matter,” said Fitzgerald. “It takes a lot of time and money to deal with this well. (At U-M), SAPAC has been around for 25 years, it’s not new on this campus. We’re fortunate to have a long history of being involved in this area. (But at other schools), officials handling these matters are not always equipped and trained to do it right.”

At Michigan, OIE investigators are staff members, and may have experience in the law, sexual-assault investigation or other related areas, Fitzgerald said.

Shannon Smith, a Bloomfield Hills lawyer who specializes in sex-crime defense, agrees, although in her practice she said she mostly sees men she believes were railroaded by the system, not female victims. Smith said she recently handled a case at a Michigan university that left her believing both victims and the accused suffer under the current system. Her client escaped suspension and doesn’t wish to discuss it publicly, but his experience echoes the Hobart and William Smith case.

“What I learned is, No. 1, anything flies in these disciplinary procedures,” Smith said. “These may be untrained, really unsophisticated (hearing officers) putting people’s lives in their hands. Crime and sexual assaults really do happen, and when it does happen, it shocks our conscience and we don’t want it to happen.

“It’s easy to get behind ideas that sound like they’re going to protect people,” she said. “But there’s a reason the law requires a certain threshold of proof – to protect people who are falsely accused.”