Facing the Complexities of Sexual Misconduct

In light of two recent surveys, U-M continues to examine and update its policies, determined to make the University a safer place for all of its students.

The summer orientation performance for incoming freshmen began with a mixture of serious and mundane issues — dealing with sloppy roommates, feeling homesick, resisting peer pressure. All were campus scenarios delivered by actors from the U-M Educational Theatre Company, and some included the occasional gag to add levity.

Yet when the topic turned to sexual assault, a marked change in demeanor fell over the performers on the stage of the Arthur Miller Theatre on North Campus. There were no skits, no props, no antics, and no jokes. Rather, they stood motionless, alternating lines in such a direct and solemn mien, there could be no mistaking the gravity of their message.

WOMAN: My short skirt does not equal permission.

MAN: Intoxication, yours or mine, does not equal permission.

MAN AND WOMAN: My sexual history does not equal permission.

MAN: No excuses.

The class of 2019 seems destined to learn more about preventing and responding to sexual misconduct than any class that has come before. In part, because of a growing awareness about the issue among U-M students, but chiefly, because the University faculty and administrators are amplifying all previous efforts to confront the problem.

From education and prevention, to policy and punishment, every possible angle is being scrutinized to combat — and be a nationwide leader in reducing — what statistics recently revealed is a startling problem.

“As a university president, a physician-scientist, an educator, and a father, the issue of sexual misconduct keeps me awake at night,” U-M President Mark Schlissel has said. “I feel personally responsible for the safety and well-being of all students at the University of Michigan.”

To that end, U-M sent a campus-wide sexual misconduct survey last winter to a representative sample of 3,000 students. The results, released in June, revealed that 22.5 percent of female undergraduates had experienced unwanted touching, kissing, fondling, or penetration in the previous year.

Then, in September, the Association of American Universities (AAU) released the results of a national survey of 150,000 students at 27 participating colleges, including U-M — the only school in the AAU study to volunteer after already administering its survey.

For the most part, the AAU survey echoed the results of the U-M survey, showing that 23.1 percent of all undergraduate female respondents had experienced nonconsensual sexual misconduct by physical force, threats of physical force, or incapacitation from drugs or alcohol since attending their University. But among senior undergraduate females, that number jumped to 27.2 percent in the AAU survey. At U-M, where 6,700 students completed the AAU survey, that statistic was even higher for senior women at 34.3 percent.

To say this is a new epoch for the University in handling sexual misconduct would be an understatement. Technically, it began in 2011, when the U.S. Department of Education (DOE) Office for Civil Rights offered additional guidance regarding how universities should handle possible Title IX violations involving students and sexual misconduct. The so-called “Dear Colleague” letter of April 4, 2011, stated that, “the sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.” The expanded interpretation, led to policy changes on a number of college campuses nationwide, including U-M.

Yet long before 2011, U-M had already begun a sweeping program of self-examination and new student education to better confront the problem. In 2009, the University implemented a program called “Community Matters,” requiring new students to pass an online, one-hour course before attending their first class. There are sections on sexual misconduct, healthy relationships, and alcohol harm, among other topics. First year students also must complete programs in prevention and bystander intervention. The programs are led by student volunteers from U-M’s Sexual Assault Prevention and Awareness Center (SAPAC), whose doors have been open on campus since 1986.

But it was following the DOE guidance that U-M wrote its first separate Policy on Sexual Misconduct for Students. It eventually expanded the definition of “consent” to read, “Clear and unambiguous agreement, expressed in mutually understandable words or actions, to engage in a particular activity. Consent can be withdrawn by either party at any point.”

Balancing the rights of both the accuser and accused is the most recent complexity being addressed in a redrafting of U-M’s sexual misconduct policy.

The policy also gave investigators in the University’s Office for Institutional Equity an active role in looking into complaints. The policy strongly encourages all faculty and staff to report to U-M’s Title IX coordinator in the Office for Institutional Equity (OIE) any information a student discloses regarding an experience of sexual misconduct, regardless of whether they have reported it themselves to the police. Students are, in fact, not obligated to file a police report, and many don’t for a variety of reasons, including not wanting to undergo detailed questioning. Statistics concerning low reporting rates were confirmed in the AAU survey. Depending on the specific type of behavior, only 5 to 28 percent of incidents are reported to campus officials and law enforcement.

Once an allegation is made through the University, accusers have access to support services, which include an advocate from SAPAC to advise them of their rights and available counseling. U-M then decides what immediate interim measures should be taken during the investigation, such as moving the accused out of his or her dorm or classes. Neither party is required to meet with University investigators, but if an accuser does not want to participate, a special review panel can be assembled to consider whether the matter should be investigated. Once the investigation is complete, the Title IX coordinator makes the final determination on the findings of the investigation. The Office of Student Conflict Resolution then decides what sanctions, if any, should be taken, based on the findings. The standard of evidence for an OIE investigation (preponderance of the evidence), specified by the U.S. Department of Education, is lower than that of the criminal justice system (beyond a reasonable doubt).

The institution of a specific policy at U-M gradually led to a growing number of sexual misconduct cases being investigated. In 2013-14, that figure stood at 129, though investigators found just 11 violations and expelled only one student. That same year, U-M appeared on a list of 55 universities under investigation by the DOE for its handling of specific sexual assault complaints; the group included Harvard, Princeton, and the University of Chicago. (As of April 2015, that list had swelled to 106 schools.)

In the wake of the DOE announcement, the Office of Student Life hosted a discussion about the University’s sexual misconduct policy with a panel that included SAPAC Director Holly Rider-Milkovich and Dean of Students Laura Blake Jones, who commended U-M’s programs and policy. “We are trailblazers,” she said of the University’s procedures, “an institution that most of the country looks to in terms of prevention and education efforts.”

But U-M survivors who have not seen their alleged assailants punished, despite investigations, feel conflicted. “Sometimes it feels like it was a mistake to report it,” says senior Fabiana Diaz, who said she was sexually assaulted on campus in 2011.

Emily Lustig, ’15, says she was raped during her freshman year but did not report it because, among other reasons, she didn’t believe her assailant would be held accountable. Lustig went on to serve as Central Student Government vice president and, in that role, focused on efforts to combat the problem.

Rider-Milkovich, the SAPAC director, understands the frustration of women like Diaz and Lustig. “We need to find ways to make our process more streamlined while also ensuring we’re not eroding any of the due process rights that are embedded in the system,” she says.

Balancing the rights of both the accuser and accused is the most recent complexity being addressed in a redrafting of U-M’s policy. In September, the University settled a federal lawsuit in which a male student contested his two-year suspension by contending U-M did not properly investigate his case and punished him without allowing him his due process rights to a fair trial. In the settlement, the school reversed its finding that the student had committed the transgression and cleared his transcript. He also is not allowed to re-enroll at the U-M.

Under proposed changes to the current policy, both the accuser and accused would have the option to appeal the findings of an investigation to a neutral party outside the University before the sanctioning process begins. Currently, a student cannot appeal until after the conclusion of the investigation and sanctioning processes. Other proposed changes involve identifying witnesses in the investigative reports and having at least one faculty member from the Law School and one student appointed by Central Student Government on the sanctions appeals board.

E. Royster Harper, vice president for student life, announced in an Oct. 1 email to students, faculty, and staff a total of 10 different roundtables to be held across campus in an effort to get in-person community input into the policy revisions. The number of roundtables, however, quickly ballooned to more than 20, with participants from all areas of the University offering feedback. Harper also shared a link to the draft revisions, welcoming feedback through an online survey.

“This is not a university that lets any mistakes go by without corrections,” says sociology Professor Elizabeth Armstrong, referring to the policy revisions, which she suspects stem from the University’s recent settlement with the male student. “This is a great place to study this issue because the basic foundation and culture of U-M is all about doing things better.” Armstrong is currently researching the sexual misconduct policies at hundreds of universities across the country while teaching a class examining university responses to sexual assault on campuses.

Already, Armstrong’s results are educational. “Almost every school in every state has a different definition for sexual misconduct,” she says. “Very few universities are further ahead than we are at U-M in terms of being compliant with the law. But what does it even mean to be compliant? It is a very complex issue. What are adequate prevention measures? What is an inadequate response?”

Rider-Milkovich hopes the results of UM’s Sexual Assault Survey will further inform its policies. “I wanted us to have more specific information about the behaviors of U-M students and have a clearer picture of what was happening on our campus,” she says. Already, a number of new measures have been put in place because of the survey results. See sidebar at right.) New efforts are also being made to tailor sexual assault awareness education to specific subsets of students that the survey showed to be at higher risk, among them, members of fraternities and sororities and LGBT undergraduates. Recently, the National Sexual Assault Conference in California highlighted this program as a best practice among higher education for its approach to educating leaders in the athletic community.

In October 2014, U-M was one of 130 universities that participated in the “Carry That Weight Day of Action,” a demonstration borrowed from a Columbia University rape survivor. Diaz was one of the U-M students who participated, lugging her 40-pound mattress to the Diag with the help of other students.

From there, she organized a two-day retreat on campus called “Culture Shift: Organizing Student Leaders to Stand Against Sexual Violence,” which President Schlissel attended. And in a growing partnership with the University, there are now 150 SAPAC student volunteers, many of them participating in a 40-hour training program to become confidential student counselors. In contrast, three years ago SAPAC had only 25 volunteers.

The conversation is also taking place beyond University walls. In June, Michigan’s first lady, Sue Snyder, helmed a conference in Lansing called the “Let’s End Campus Sexual Assault Summit.” And in September 2014, President Obama launched “It’s On Us,” an awareness campaign led by the federal government as a result of an April 2014 White House task force on campus sexual assault. Several bills have been introduced in Congress and Lansing to standardize criteria for investigating and punishing sexual assaults. And this fall, the Michigan Legislature introduced a “Yes Means Yes” policy initiative, a law first enacted in California that requires affirmative consent to be present for appropriate sexual activity.

Lustig and Diaz say they now feel cautiously optimistic, praising U-M’s president for his tone and interest. “President Schlissel has done such an amazing job of trying to really listen to students,” says Lustig. “He gets on their level and he asks really inquisitive questions to get at what the students’ mindset is, what they’re thinking, how they want things to change, why they’re thinking the way they are. He knows there’s still a lot of improvement to be made.”

Steve Friess is an Ann Arbor-based freelance journalist whose work appears in the New York Times Magazine, Buzzfeed, New York magazine, and many others. He was a Knight-Wallace fellow at U-M in 2011-12.