From the Issue: Zero Tolerance?
Written by Bwog Staff
Columbia recently updated its sexual assault policy. In the latest issue of The Blue & White, staff writer Anna Bahr weighed in on the changes. Be sure to look out for the December issue soon to hit the presses.
Zero tolerance implies an uncompromising, absolute application of law. When the phrase appears as the ironclad final word on sexual assault in university handbooks, those two words make perfect political, ideological sense: sexual assault is a crime punishable by United States law. It follows, then, that the Columbia administration states in its newly renamed and significantly revised “Gender-Based Misconduct Policy” that it “does not tolerate any kind of gender-based discrimination or harassment.”
Of course, in reality, the math is not so simple. If zero were zero, every student in violation of the policy would be expelled without a second thought. Reality does not accommodate such exacting demands. If it did, some fraction of the 39 reported sex offenses committed by students on Columbia’s campus and in residence halls between 2008 and 2010 would have resulted in expulsion.
Though Columbia is not permitted to release any information regarding its sexual assault investigations, the administration has a reputation for issuing lenient sanctions for offenders of the policy. The Columbia Daily Spectator reported that the first expulsion for sexual violence in nine years occurred just last year. As President Bollinger commented in December, “If it is true that no one has been expelled for sexual assault… My view is that that’s a problem.” He went on to add that he had no immediate intention to review the assault policy.
But someone did. Columbia’s sexual assault policy underwent major changes over the summer. The last major overhaul of the policy occurred in 2000 when the university’s response to sexual violence on campus was formally consolidated into the “Sexual Assault Policy.” The policy has sustained minor revisions over the course of the decade, but its newest incarnation demonstrates the university’s renewed commitment to serious and comprehensive treatment of assault.
The new policy, effective as of August 2011, carries a new title and a far more inclusive outline of behaviors qualifying as “gender-based misconduct.” Formerly limited to sexual assault, the guidelines now encompass a range of sexual misconducts from intimate partner violence to stalking to harassment. Exercise of such conduct should hypothetically result in sanctions: the mildest a written reprimand, and most punitive expulsion from the college. The policy also makes a conscious and explicit effort to incorporate students of every sexual orientation, including queer, trans, and gender non-conforming survivors in its formal legislation.
The appeals processes has been amended, evening the playing field between accuser and accused. Where the old policy only respected the respondent’s license to request a review of the decision of the panel or the sanction against him/her, the complainant is now afforded the same right to appeal.
Perhaps most significantly, the university has hired a “Title IX investigator” professionally trained in dealing with issues of sexual assault to independently and objectively investigate any complaints filed through the university. On call seven days a week, the investigator’s role is that of an impartial researcher: her formal purpose is to “gather pertinent evidentiary materials,” conduct interviews with the students involved, and prepare a report describing her findings and detailing their content to aid the hearing panel in their decision. Informally, recruiting an investigator signifies an unprecedented commitment on Columbia’s part to treating sexual assault with seriousness. It is no longer a “student’s issue” dealt with by students—the university plays an active role.
Under the former policy, both students involved in the complaint were responsible for producing witnesses and evidence to substantiate their case. Melissa Tihinen, Senior Manager of Student Services for Gender-Based and Sexual Misconduct, says that the burden of proof has been removed from the students entirely. “Before, students had to go in front of the hearing panel and describe their entire experience to three people sitting across the table from them,” she continues. “Now we have a system whereby the on-call Title IX investigator is the first point of contact and is relaying to the hearing panel what she has learned through the investigative process…Before the burden existed on both students, now it’s shifting” onto the mediator.
Despite this major structural change, the penalty for violating the policy is still decided upon by an individual exempt from involvement in the hearings process entirely: the Dean of Students for the respondent’s school. For Columbia undergraduates, that means Kevin Shollenberger. A three-person panel presides over the hearing: one student, selected through an application process by the Student Services for Gender-Based and Sexual Misconduct office, and two deans or senior-level administrators who have each undergone a two-day training period to verse themselves in the complicated policy. The trio is responsible for deciding whether “it is likelier than not that the respondent violated the policy,” says Tihinen.
Tihinen makes it clear that these students are “not on trial.” The sentencing of the student is similarly innocuous. You are not found guilty, but “responsible, not responsible,” or the panel confusingly has “no response.” This mock system of law is not the New York court system, nor should it be. As Tihinen notes, students always have the option of taking their case to the police, and when they choose to use the university’s penal code, it’s for a reason. But the mildness of this phraseology seems almost sympathetic. These “policy violations” translate to felonies and possible prison time in the court system. Where, though, do “responsible” and “guilty” overlap? Even given the inevitable differences in the university’s decision-process, this ambiguous “likelier than not” mandate is offensive, unsatisfying, and a completely different animal than “zero tolerance.”
Nowhere in Columbia’s policy is justice mentioned. The less inflammatory phrases “prohibitive” and “conduct code” are favored. As sanctions can plausibly be issued to a student more than once (sanctions are elevated if a student has violated policy on multiple occasions) it stands to reason that the consequences for assault are first educational and eventually may be punitive.
Columbia does not delegate to the panel the authority to penalize offending students, nor is the panel licensed to recommend sanctions to the deciding officer. That punitive power is instead turned over to Dean Shollenberger, who is thoroughly briefed as to the rationale behind the panel’s decision and given full access to the Title IX investigator’s findings used in the hearing, but ultimately is beholden to no opinion but his own. Nor is he ever physically present during the hearing. Why is the arbiter of sanctions against a student not in attendance for the hearing upon which he is making his decision? Would a judge be asked to rule in a court of law without sitting through a trial? The rationale behind entrusting the penalty decision to the Dean lies in his ability to contextualize the respondent’s history of behavior, says Tihinen:
“If the student is found responsible, the panel sends the rationale for their decision to the Dean of the respondent’s school. The panel doesn’t have any information about the student’s prior conduct history. So, when a student conduct officer sanctions a student, they use previous conduct history as information to make a decision about what type of sanction is appropriate. If the student has engaged in concerning behavior in the past, they might receive an elevated sanction.”
For Janine Balekdjian, CC’13 and a senior editor of the newly-founded magazine Feminist Mystique and President of Columbia Democrats, Dean Shollenberger’s absence is the most condemning flaw of the policy—and the one that continues to escape revision. “The panel structure is very thorough,” she says. “But the student’s Dean [of Student Affairs] is not on the panel and has no obligation to follow [the decision] made by the panel. This has been the same issue people have been talking about for the entire decade and it’s still not fixed.”
Equally significant, two students found culpable in separate, but situationally similar, rape hearings could hypothetically receive drastically different penalties based on their prior (reported) violations of the policy. Of course, expulsion is not always the goal for a complainant. The university cannot respond to cases in a cookie-cutter way, and flexibility is imperative in cases of sexual assault as survivors are sometimes not interested in their perpetrator being kicked out of school, says Lauren Herold, CC ’12, and a member of the President’s Advisory Committee on Sexual Assault. Clearly, the hearings process is not modeled on any US court of law. But the enormous leeway given to the Dean of Student Affairs and the lack of standardized consequences (e.g. stalking might automatically necessitate disciplinary probation in the same way that a DUI automatically requires license suspension) does little to remedy accusations concerning the university’s hands-off treatment of cases. That the complainant has chosen to pursue a hearing within the university does not change the fact that sexual assault is a criminal offense and should be treated as such. Using Columbia’s hearing panel as opposed to a court room’s jury cannot be a loophole for respondents, who might otherwise spend time behind bars.
Columbia’s efforts to revise the policy happen to occur as national attention turns furiously on campus assault. Yale is under investigation for violating the gender-equity law Title IX after sixteen students filed a complaint against the university for its “inadequate response” to eliminate the “hostile sexual environment on campus.” The investigation rides on instances of sexual harassment (including a charming, chanting horde of pledging fraternity brethren yelling, “No means yes, yes means anal”) and allegations of the university failing to adequately address cases of rape. Vice President Joe Biden launched his “1 is 2 many” campaign this fall in response to the recently published statistic that 1 in 5 young women will be a victim of sexual assault during their college years. In New York, it’s 1 in 4, reports the New York State Coalition Against Sexual Assault. Meant as an educational tool to draw awareness to the prevalence of violence against women, Biden’s campaign clearly addresses a targeted audience: “Rape is rape is rape, and the sooner universities make that clear, the sooner we’ll begin to make progress on campuses,” he said.
Finally, a Dear Colleague letter was issued this April by the Department of Education, pressing all schools that receive federal funding to adopt a truly zero tolerance sexual-assault policy and a complaint process that gives both the complainant and respondent equal rights under the hearing process—a nuance lacking in Columbia’s former policy which allowed the respondent to appeal the Dean’s decision, while the complainant was not afforded the same privilege. “The Dear Colleague letter serves to inform all schools of their obligations under Title IX as related to sexual harassment and sexual violence. There’s an understanding that something isn’t being done correctly on a widespread, general level. The Department of Education is attempting to clarify gaps in knowledge…and explain in greater detail what universities should be doing,” explains Tihinen.
Although the new policy stands corrected, it seems unlikely that this massive overhaul in legislation would have occurred organically had it not been for this serendipitous confluence of external pressures. As Sarah Gitlin, CC ’13, put it, “Public humiliation is a great way to make change. Any kind of exposure in the public eye is going to elicit a response.”
According to Herold, from her perspective on the Advisory Committee on Sexual Assault, the university’s image-conscious orientation weighed heavily on the decision to reform. “There were already activists meeting with deans to get things moving with the policy, and I think there were internal meetings about it,” she notes. “But administrators at Columbia are very worried about Columbia’s image. That has probably affected decisions made in the policy. I’m not sure [changes to the policy] would have happened as quickly.” But whatever the impetus, Herold says the important thing is that changes have been made and the policy is poised to be one of the most administratively involved procedures on campus. The entire administration is now actively conscious of both the rampancy of gender-based misconduct on campus, and their role in it.
In a debilitating oversight, though, the only group who has not been made adequately aware of the revisions to the policy are those whom it is meant to protect: students. A rather weak flyering campaign failed to capture the attention of the undergraduate body (have you seen any?), and the Student Services For Gender-Based and Sexual Misconduct’s website is laden with bureaucratic jargon, but does not explain the significant departures from the policy that was in place just a semester ago, making it difficult for those unfamiliar with the intricacies of the debate to contextualize the reforms. Though those students who bothered to attend the “consent is sexy” workshops were lectured about the changes, it’s likely the word “sex” was more consistent with their first-week mindset than “assault.” Dean Shollenberger has yet to make a statement to the student body detailing the changes.
Tihinen admits that the office has been slow in reaching out to students, but was unable to offer any explanation besides administrative inertia. “We were [planning to publicize the new policy]…We were in the process of getting information together.” Though Herold estimates the Office of Gender-Based Misconduct has reached out to over 3,000 people, that number apparently excludes students. Balekdjian, who actively researched the policy, notes, “Navigating the website was extremely difficult. Regardless of whether the changes are good, people are unsure of what the policy was and what it is. People don’t know about the changes and they don’t know about the resources available to them.”
Columbia’s is, for the most part, a good policy. Quantifying the success of a sexual assault policy by tallying expulsions neither represents the wishes of all survivors of assault nor takes the severity of misconduct into account. It goes beyond basic compliance with Title IX requirements, and the Office of Gender-Based and Sexual Misconduct has proven itself to be committed to regularly reassessing the policy and extending educational resources to the Columbia community.
But a lack of transparency in issues of sexual violence prevents open dialogue—and by default a greater awareness of its pervasiveness. By staying true to its typical bureaucratic standard of non-commitment, Columbia messes up the math. Gestures at “zero tolerance” are rendered meaningless. In 2010, the Justice Department’s Office on Violence Against Women released statistics reporting that 75 to 90 percent of disciplinary action taken by schools against sexual assault offenders amounted to “minor sanctions.” Zero tolerance, that is not. You have to wonder what the data looks like here.