Some changes in the new assault policy are better than others
In response to federal laws updating Title IX, the University has released a new policy for cases of sexual misconduct on campus.
But several oversights within the policy reflect a lack of student input and could have severe consequences for victims of sexual assault.
The complexity, definition of consent and the absence of certain rights may further deter, frustrate or re-traumatize victims in pursuit of justice. Students should demand these problems be rectified.
Federal law determines much of the policy. This includes proving a preponderance of evidence, or that it is “more likely than not” that an assault occurred, as the burden of proof.
Federal law also establishes the position of a Title IX coordinator at the University for oversight and to assist victims.
These are both good steps; easing up on the burden of proof will allow for harder crackdown on sexual assault cases.
It is commendable that the University is reviewing the processes and trying to amend them to better protect the victims.
However, some of the specifics of the University’s complaint process are problematic.
For example, definitions matter in these cases. The definition of consent adopted is limited, easily manipulated and depends wholly on the perspective of the accused or what the perspective of a rational person in their shoes would be.
This is problematic for victims because it makes the definition of sexual assault more subjective.
Under the new definition, a person can’t give consent if they suffer an intellectual disorder, if they are “incapacitated” by drugs, alcohol or other impairing substances. Also, consent cannot be obtained by force.
While this is well-worded, one change is not as comforting. The new policy implies that alcohol consumption is not enough to preclude consent.
Therefore, if victims were under the influence of drugs or alcohol when the sexual assault occurred, ability to give consent is determined by the perception of that person’s decision-making ability at that time.
That means, in a hypothetical situation, a victim who is too afraid or intoxicated to run away could be taken to be making a rational decision to stay.
This standard bases the question of consent more on the position of the perpetrator’s perception than that of the alleged victim.
The “reasonable person” standard is supposed to protect victims.
But as written, it instructs the committee to view the situation from the position of the accused, rather than from the perspective of an impartial third-person spectator.
This definition also does not explicitly say that prior consent does not mean present consent. This is particularly troubling because about 90 percent of rapes of college women are by acquaintances.
It should be revised to reflect the reality that consent may be revoked at any time, and it is the responsibility of the pursuing partner to be responsive to that.
No legal definition of consent will capture all cases, but students should insist on one that is objectively definable, provable, sufficiently broad and not reliant on underlying assumptions of the accused or the committee.
The definition of consent is not the only potential obstacle for victims in the new system, though.
Under the honor system, both parties could appeal the court’s ruling if they thought there was or was not enough evidence to justify the ruling.
Courts make mistakes, and this right is a basic protection in the face of ambiguous rationales. In the new policy, it is unmistakably and unacceptably absent.
Also, the new policy does not include a minimum punishment if the accused is found guilty.
The new sexual assault policy has some needed improvements from the old policy.
The addition of the Title IX coordinator will provide another level of support for victims, which should always be at the center of the related policies.
But the policy is not perfect. Students should petition administrators to amend the policy to better protect the needs of victims and the values of our community.