An open dialogue about Davidson’s sexual misconduct policy with Sarah Phillips and Dean Kathy Bray
On the afternoon of May 8, the Davidson community came together for a Safe Walk March to show support for victims of sexual violence. The march coincided with renewed concerns over the prevalence of sexual assault on college campuses highlighted by the release of findings by the White House Task Force to Protect Students from Sexual Assault.
Davidson will convene its own task force in the fall to review the college’s sexual misconduct policy and processes. We sat down with Kathy Bray ’85, associate dean of students, and Sarah Phillips ’01, vice president and general counsel, to talk about policy, prevention and community norms.
Q: How does the college define “sexual misconduct”?
SP: Davidson’s definition of “sexual misconduct” includes any non-consensual conduct of a sexual nature, sexually exploitative behavior and sexual harassment. The definition covers a broad range of behavior, from unwelcome verbal conduct that denigrates an individual because of that individual’s gender to non-consensual sexual conduct that would rise to the level of criminal sexual assault.
In the wake of the Campus SaVE Act, which requires us to have policies addressing stalking and relationship abuse and violence, our definition of sexual misconduct now includes those pieces as well. A complaint about stalking could have nothing to do with any sort of sexual encounter between students, but the processes we’re expected to follow in the instance that a report is filed have a lot of similarities, and so we address them under a single policy.
Q: What is your role? How do you interact with students in relation to sexual misconduct cases?
KB: In my official capacity as Title IX Coordinator, I oversee the college’s compliance with federal mandates concerning how the college responds to reports of sexual misconduct on campus. Oftentimes students will report sexual misconduct either directly to me or Georgia Ringle, our health educator. I have an oversight role, but I’m also a point of contact for students who’ve experienced sexual misconduct. They may and can also report an incident of sexual misconduct to any member of the Davidson faculty or staff. As the Title IX Coordinator, those reports come to me, which is important because the college watches for patterns of behavior on campus that need to be addressed.
When I hear about a report, either directly from a student or from a member of the community, I help to ensure that the student is made aware of what his or her options and resources are, both on campus and off campus, and I help the student understand the various kinds of support the college offers.
Q: What are some examples of patterns of behavior you look out for?
KB: An example would be if I received multiple reports that sexual misconduct of some kind was occurring on a particular part of campus, or involved a particular group of students, or if there was a point in the semester or the year when reports increased. Then we as a community would want to respond to that by implementing changes to practices, or new educational programs or training to address whatever the reports describe.
Here’s an example of a change in practice that dates back a few years. Research suggests that first year college students are most vulnerable during their first semester, and really during their first weeks, at college. So we incorporated an orientation session called “Community of Respect,” which includes information about sexual misconduct.
Q: Why do colleges have processes for dealing with criminal behavior apart from the criminal justice system?
KB: The short answer is that colleges and universities that receive federal funding are required to have a process in place. In my personal opinion, it would be an abdication of the college’s responsibilities not to provide a process and procedure for students who have experienced something as difficult as sexual misconduct. For lots of different reasons a person may decide not to take criminal action and yet still want to take some kind of action.
When a student comes forward with a report, I inform them that they can pursue criminal action if they want to. If that’s a path they choose, we stand ready to support them in that decision. Campus police can help them understand what that process might look like and what would be required of them. There have been times in the past when I have connected a student with a member of the district attorney’s office for an informal conversation so that the student could get more information about what that process entails.
SP: If a student chooses the criminal process, we nevertheless have an obligation under the law to have a process available to them on campus and to hold an investigation pursuant to Title IX. I think our moral obligation is illustrated by the fact that the college had a policy in place long before the federal government began mandating that colleges have these policies. At Davidson, having a disciplinary process for sexual misconduct that is separate from other disciplinary processes predates the government mandates.
KB: Davidson as a community is predicated on mutual trust and mutual respect, and Davidson students have an ethical tradition of abiding by high moral standards. So it becomes all the more important that the community have established standards of behavior and processes for dealing with violations of those standards.
Q: What are the differences among the Clery Act, Campus SaVE Act and Title IX?
SP: Title IX, the Clery Act, and the Campus SaVE Act are federal laws that address how the college handles [or responds to]reports of sexual misconduct. Title IX prohibits discrimination on the basis of sex in education programs or activities, including sexual harassment and acts of sexual violence. Under Title IX, colleges and universities have an obligation to respond promptly and effectively to reports of sexual violence against students and to take action to eliminate a hostile environment created by student-on-student sexual harassment. The Clery Act requires colleges and universities to disclose information about reported crime on and around their campuses, including reports of sexual assault. The Campus SaVE Act is an amendment to the Clery Act and requires schools to develop education, primary prevention and awareness programs to promote the awareness of sexual assault, domestic violence, dating violence and stalking.
Q: How was Davidson’s policy created, and how often is it reviewed and revised?
KB: The policy was first drafted in 1991. There was a significant revision seven years ago, followed by two additional significant revisions in the last three years. We will again review the policy and procedures this summer, and then the Sexual Misconduct Task Force will conduct another review in the fall. In each of the reviews we studied our policy in the context of federal mandates, general best practices, feedback we received from students who had been through the process, and feedback from faculty and staff who had served in some capacity in the process. One of the significant changes we made was to provide information to the sexual misconduct board in cases where multiple reports had been filed implicating the accused student. That was an important change in light of the recidivist nature of sexual misconduct. Another change was that either student involved in a hearing can elect not to have peers on the sexual misconduct board. We learned that having to share the particulars of their experience with their peers sometimes was a perceived barrier to students’ submitting a formal complaint to the board. Now, either student can elect to change the composition of the board so it doesn’t include students—Title IX mandates that both parties must be given the same rights.
SP: When we made significant revisions to our policy in 2012, Kathy met with groups all across campus to talk about the process and policy, everything from how to report to what the standard of evidence was going to be. She then held open meetings with students, faculty and staff. That process helped educate the campus about the policy. We value every piece of feedback, every suggestion we get.
KB: Once changes to the policy are recommended, it is voted on by the student conduct council twice. After they approve it, it goes to the college president for approval. I have a lot of faith in our policy and procedures. But if there is one student who feels that it didn’t serve him or her well, that is reason enough to review it.
SP: In addition to sharing information about the policy at orientation, every time we make a revision the policy goes out to the whole student body in an email, with the major changes highlighted.
Q: How does Davidson educate students about sexual misconduct?
KB: With regard to our incoming students, each of the 500 new members of our community brings with them a lens that is unique to their background and experiences. Many of the students that come to Davidson come with the assumption that they can trust their peers because of our culture of living with honor and integrity and respecting the dignity of others. I would say their trust is not misplaced—the vast majority of students at Davidson are worthy of that trust. Our responsibility as a community is to educate all members of the community about the realities of situations they could potentially encounter in college, which is one of the reasons we have an education session at orientation that addresses some of these issues. That session occurs on the first day of the first night they will be without their parents at Davidson College, so our challenge is to educate them out of the gate without scaring them. We follow up that educational piece with additional programming that goes on during Davidson 101 throughout the fall semester, and through hall programming.
Our students have a heightened sense of right and wrong. They have very strong moral compasses. To me, that means that at Davidson we have a great opportunity to prevent sexual misconduct. One of the things I’m excited about is the intervention training we’re beginning in the fall—it’s a comprehensive, research-based program developed at the University of New Hampshire that will equip students to intervene in an effective and safe way when they see a potentially threatening situation unfolding. It will also serve to affirm that their instincts are correct.
Q: Please outline the distinctions among the Honor Code, Code of Responsibility and Sexual Misconduct Policy.
SP: There are three different processes for handling violations of each of these policies. Honor Code cases go to the Honor Council, Code of Responsibility cases go to the Judicial Board, and sexual misconduct cases are heard by the Sexual Misconduct Board. So there are different processes, but the same sanctions are available to these three bodies. For instance, indefinite suspension has been a punishment for violations of each of these policies. The sexual misconduct policy deviates from the other policies in that you don’t have to have unanimous consent by everyone hearing the case to impose the sanction of suspension. It just has to be a majority.
There are presumed sanctions for Honor Code violations of cheating. We don’t have a presumed sanction for a particular sexual misconduct finding. That’s something the Task Force will revisit in the fall.
KB: In all cases it’s critical that the sanction fairly fit the violation, as seen in total context.
SP: It is also important to note that we have Title IX obligations above and beyond what happens in the disciplinary process, and we’ve built those into our policy. When a student reports being a survivor of sexual assault, that student can request, in consultation with Kathy and with her guidance, a number of non-disciplinary measures we can put into place. Examples are no contact orders, class reassignments, medical services, counseling resources and, if warranted, academic adjustments to the student’s course load. All of that can happen even if a student doesn’t want to pursue the disciplinary process, or even after the disciplinary process has happened. There’s a whole other level of support available.
Q: Please explain the standard of proof used in sexual misconduct cases.
SP: The standard of proof for sexual misconduct cases is by preponderance of the evidence—that was one of the substantial changes to come out of the federal guidance under Title IX known as the Dear Colleague Letter of 2011. Prior, the college’s standard of proof had been clear and convincing evidence, which is still the standard of proof for cases heard under the Honor Code and Code of Responsibility. By contrast, the criminal justice system requires proof beyond a reasonable doubt.
Q: If a person is found to have violated the sexual misconduct policy, why can suspension be imposed only under certain conditions.
SP: Each of our disciplinary policies has a heightened standard that must be considered in a decision to definitely or indefinitely suspend a student. I think a heightened standard is appropriate given that we don’t have the sanction of expulsion here—suspension is our harshest punishment. To suspend a student, the student’s continued membership in the college must either be judged to be fundamentally at variance with either the integrity of its educational mission, pose a specific threat to the student’s own emotional health, or pose a specific threat to the minimal internal order of the community. Those standards are the same as the Honor Code, and were carried over, unchanged, to the Sexual Misconduct Policy. There are three different factors, and you only have to find one of them. Two of the factors are broad enough that if the board felt that, seen in total context, the violation was severe enough, or there’s a continued threat to other students on campus, they would have enough to find for a suspension. That said, the suspension standard will be one of the things the Task Force looks at.
Q: What are some common misconceptions about sexual misconduct?
KB: This is not a misconception, but it’s something I’d like students to know. So much of the data indicates that these are repeat offenders. And I think it’s important for them to have that information so that they feel empowered to act on their instincts. I tell students that there’s a reason they get a bad vibe around a particular person. As young people are figuring out the landscape in which they live, they need to trust their instincts, and intervene on others’ behalf when they sense that something is not right.
Q: As someone close to these issues, what would you tell other parents?
KB: I don’t know that this is advice just for parents, but the other piece of data that comes out of the research is that many perpetrators will use alcohol as a weapon, meaning they will target students who are incapacitated by alcohol and therefore extremely vulnerable—the perpetrator may even supply it with the intention of rendering a person incapacitated. I want to be careful here because the discussion shouldn’t focus on what students need to do to keep safe at college—it needs to be about what we all need to do to stop sexual misconduct. It needs to focus on the perpetrators and intervention strategies and community norms and our response to reports of sexual misconduct.
Please send questions or suggestions to the Davidson task force at SMPtaskforce@davidson.edu.