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Editor's note: This article contains discussions about sexual assault and violence.

First-year Orientation typically comes and goes in a blur of activity: check-in lines wrap around Gund Commons; new roommates negotiate over who gets which bunk; tears are shed and hugs are shared before family members depart for home.

Also among the rites of passage for today’s first-year students is the act of adding the Sexual Misconduct Advisor hotline into their phone’s contact lists.

That hotline is added at the close of the required “Real World: Gambier” program, which is written and performed by Kenyon students to explore everyday issues in college life. And it’s indicative of a difficult reality on college campuses today: An estimated 20 percent of women and six percent of men are sexually assaulted in college, according to the National Institute of Justice. Outrage over sexual misconduct has exploded in recent years as more and more cases make national headlines and heat up social media.

Stanford, Baylor, Vanderbilt, Yale, the University of Virginia and Columbia are a small sampling of the many colleges and universities across the country that have dealt with sexual misconduct cases in recent years — often in the glare of the public eye. And Kenyon is hardly a stranger to this problem, despite its progressive image, supportive climate and carefully selected student body.

In September, Kenyon received notice that it will undergo a Title IX investigation by the U.S. Department of Education’s Office for Civil Rights. The federal government is currently investigating 272 cases at colleges and universities nationwide, and Kenyon is cooperating fully with the investigation.

The campus has not been standing still the last few years on this issue. It has been the focus of much of my time and attention since coming to Kenyon three years ago."

President Sean Decatur

In a 2015 campus survey, 9.8 percent of Kenyon students who responded said they had been sexually assaulted while on campus or at a Kenyon-sponsored event off campus. Another 5.9 percent of students suspected they had been sexually assaulted. Both rates are higher than at similar small colleges that conducted the Campus Climate survey, where 7.5 percent reported being sexually assaulted and 3.2 percent suspected they had been.

This year’s Kenyon crime statistics also reflect the problem. The federally required Clery Act report shows an uptick in the category of rape, with two in 2014 and seven in 2015.

Samantha Hughes, Kenyon’s Title IX coordinator, explained that the increase doesn’t necessarily mean more sex offenses are being committed at Kenyon. “I think the higher number of reports means students have a broader understanding of where to report and how,” she said. “But it’s going to take a few more years of gathering data before we can analyze trends.”

The issue isn’t new. Like many colleges, Kenyon has struggled with it for decades, especially when cases of sexual assault became public as the result of lawsuits.

Last spring, the issue became a flashpoint on campus as an account of a recent case surfaced on social media. Although that account has been shared widely in the news and on social media, student privacy laws prohibit the discussion of any particular case in any Kenyon publication, including this magazine. These restrictions are found in the Family Educational Rights and Privacy Act (FERPA), which protects the privacy of student education records at any institution receiving federal funding.

Still, campus leaders and alumni are airing their concerns about sexual assault on campus in the hopes that a clearer picture emerges of why it happens, how the College deals with it, how that process has evolved over the years and how it may change in the future.

Kenyon President Sean Decatur ordered an independent review of the College’s policies on sexual misconduct to determine if they line up with those suggested by the U.S. Department of Education. At the same time, he said, Kenyon would examine its campus culture to determine what changes are needed to help prevent sexual misconduct.

Evolving legislation

Reports of sexual misconduct on campuses today are intricately tied to the federal Title IX law, which prohibits schools from discriminating on the basis of sex. Baby boomers know the law as one that, beginning in 1972, helped women’s sports blossom at a time when few school sports existed for females.

But in the late 1990s, the federal government’s Title IX guidance began to focus on sexual harassment in schools, especially sexual misconduct on campuses. In 2011, the U.S. Department of Education’s Office for Civil Rights issued a 19-page “Dear Colleague” letter that detailed how schools should handle sexual misconduct cases.

“Sexual harassment is unwelcome conduct of a sexual nature,” the letter read. “It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX.”

The letter stated that schools must designate a Title IX coordinator, establish a policy against sex discrimination, take proactive measures to prevent sexual violence and provide a grievance procedure for students who are victims of sexual violence. It also requires schools to take immediate action to investigate possible sexual violence, take steps to end it and address the effects of that sexual violence. Kenyon updated its Student Handbook in response to that guidance.

In March 2013, President Obama signed the Violence Against Women Reauthorization Act (VAWA), which also set up new rules for colleges and universities. Under the act, crime statistics that schools must report annually under the Clery Act were expanded to include stalking, domestic violence and dating violence. The act also requires schools to offer new students and employees education on bystander prevention, and prevention and awareness of rape, domestic violence, dating violence, sexual assault and stalking. Implementing regulations went into effect July 1, 2015.

In response to the new Clery Act requirements and considering emerging best practices, Kenyon undertook another policy review. The result was its 2015-16 Title IX and Violence Against Women Act Policy, a detailed, 24-page booklet that all students received when they arrived at Kenyon in the fall of 2015. (The new policy covers similar complaints about staff and faculty; this story deals only with student complaints.) The current version of the policy can be found on the College’s website at kenyon.edu/titleix.

The shift to an investigative model

The biggest changes from Kenyon’s prior policies are the way formal complaints are handled. Previously, a student conduct board made up of students and faculty would consider formal complaints during a hearing. The accused (referred to in legal documents as the respondent), the accuser (complainant) and witnesses would present their stories and evidence, and the board would make a ruling.

On July 1, 2015, Kenyon switched to an investigative model, as suggested by the “Dear Colleague” letter. Under that process, two investigators — one from outside the College and one a Kenyon employee trained to investigate — interview the accuser, the accused and witnesses, and review evidence. Investigators write an initial investigative report and allow the parties involved to review it and offer additional comments, questions and evidence. Then the investigators write a final report detailing responsibility, or non-responsibility, for each policy allegedly violated. Their conclusions are based on a preponderance of evidence standard, meaning that the accused can be found responsible only if there is more evidence than not to support that a policy violation occurred. This is the burden of proof used in civil cases, as compared to the “beyond a reasonable doubt” proof used in criminal cases.

If investigators find insufficient evidence that the accused is responsible for a policy violation, they dismiss the case. If they find that the evidence supports a finding that the accused violated College policy, the director of the Office of Student Rights and Responsibilities reviews the report and decides how the student will be sanctioned.

Sanctions range from a warning to dismissal. Either the accused or the accuser may appeal the investigator’s decision if they can provide new evidence or point out a procedural error that substantively affected the ultimate decision. In those cases, the vice president for student affairs reviews the case and issues a decision.

Linda Smolak, Kenyon’s deputy Title IX coordinator, said utilizing investigators, rather than a hearing board, means the accuser and the accused don’t have to face one another; all interviews are conducted separately.

“It’s supposed to be less stressful and onerous, and better at taking into account the traumatic nature of the complaints,” she said. “That’s one of the big reasons we changed it. Title IX said the people (involved) shouldn’t be forced to be in the same room.”

Melissa Carleton, a private attorney with the firm Bricker & Eckler, who advises Kenyon about Title IX, said the change is significant.

“The shift to an investigator model means that the participants no longer need to describe intimate details of their lives to an entire hearing panel,” she said. “Both parties are provided with more time to respond to the information that is gathered, rather than having to think on their feet during a hearing. In my opinion, it’s a potentially less overwhelming, more sensitive process for all those involved.”

“Always tell someone.”

Nicole Keller, a counselor with the College, said that Kenyon encourages students to report sexual misconduct either to confidential sources, to a faculty or staff member, or with a formal complaint to the College’s Title IX coordinator. She said that students who experience sexual misconduct often choose to say nothing — sometimes because they fear that “everyone will find out and make a judgment of some sort” at a small campus like Kenyon.

“Always tell someone,” she said. “That’s how we as a college learn what’s going on and can engage in dialogue with our students.”

Faculty and most staff are considered “responsible employees” under Title IX and must share all information they learn about an incident with the Title IX coordinator. Sarah Heidt ’97, associate professor of English, said she’s upfront about that when students come to her with a sexual misconduct complaint.

“It’s not an abdication of my responsibility,” Heidt said. “I’m acting as an agent of the College. The students know this.”

Some students turn to confidential sources, including counselors, specially trained student Sexual Misconduct Advisors and peer counselors, clergy, and others. Often, Sexual Misconduct Advisors — known as SMAs — are the first stop.

“We know that peers go to peers first, so they’re kind of the first responders, available to talk to students and tell them what their options are,” said Keller, the counselor in charge of SMAs. Kenyon has had SMAs for more than two decades, and the number has grown from a handful to 30, as more and more students have utilized the program in the past five years, Keller said. Students reach the advisors through a campus hotline (given out, as previously noted, during Orientation).

We know that peers go to peers first, so they’re kind of the first responders, available to talk to students and tell them what their options are."

Nicole Keller, college counselor, on the role of sexual misconduct advisors

Kenyon staff will help alleged victims contact law enforcement if they request that and will automatically notify law enforcement if the victim has reported a felony, such as a rape. That’s required under Ohio law, which states that “no person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities.”

A victim can choose to proceed with both a law enforcement investigation and a Kenyon investigation, or one and not the other. The “Dear Colleague” letter requires the College to work with law enforcement if both entities are investigating, but the College is not permitted to wait for a criminal case to resolve before it makes its own determination as to whether a policy violation was committed. Smolak said victims often choose only the Kenyon investigation because they want to put the matter behind them. They fear for their social life and worry that they’ll be harassed or ostracized.

“It’s hard to come to grips with naming the situation that has happened to you,” she said. “People often ask, ‘Why don’t you take it to the police?’ If someone wants that, we’ll take them to the sheriff, but we also have an independent obligation to make sure our campus is safe.”

Federal law requires schools to give everyone equal access to education, and that means responding to events, such as sexual harassment, that can reduce access to education.

Colleges have always dealt with sexual misconduct, Smolak said. Under Kenyon’s policy, that includes sexual harassment, non-consensual sexual contact and sexual intercourse, sexual exploitation, stalking, physical harm and intimidation, harassment, bullying or cyber bullying, intimate-partner violence and retaliation. All are considered prohibited conduct for which students can be punished.

James G. Carr ’62, a federal district judge for the U.S. District Court for the Northern District of Ohio, noted that Title IX cases arising from alleged sexual assaults seem to be increasing on federal court dockets and “appear to raise sometimes novel and always challenging issues of statutory application and even constitutional doctrines. ... My sense is that the coming decade is likely to see many more cases of this sort under Title IX, as the courts do their essential and proper job of interpreting and applying the law to the facts of individual cases,” he said.

“In other words,” Carr added, “it may be that what the federal courts see today is the proverbial tip of the iceberg.”

Beer and sex ed

Kenyon staff also is tasked with making students aware of the sexual misconduct issue.

“We’re trying to get across that sexual assault is an issue for everyone at Kenyon,” said Samantha Hughes. “It’s not something that’s tolerated at Kenyon.”

Before classes began this fall, parents of all students received a letter from Hughes and Meredith Harper Bonham ’92, vice president for student affairs, asking them to speak with their child about issues such as alcohol use, sex and sexual misconduct (suggested talking points were included with the letter). Faculty also received the letter, and that prompted Heidt to plan discussions about these topics with the students she advises.

The College also began a new online training course this year called “Think About It.” Incoming students were required to take the course before they registered for classes. It replaced an online course about alcohol that “wasn’t resonating with our students,” Hughes said.

The new course stresses college policies and Title IX requirements but also concentrates on helping students learn about the realities of drinking and sex, she said.

That message is reinforced by a 16-year-old Kenyon program known as Beer and Sex, run by a student organization. Beer and Sex student volunteers talk with first-years and new students about drugs, alcohol, sexual assault, sexually transmitted diseases and bystander intervention.

Shayla Myers ’02 helped start the program in 2000 in response to a growing awareness about the problem of sexual assault on campus.

“Sexual assault always has been an issue on college campuses, but there were incidents the previous years that made all of us more aware across the community,” said

Myers, now a public interest attorney in Los Angeles. “There were studies at the time that said peer influence matters a lot in influencing perpetrators’ behavior. The program was pulled from a lot of innovative work being done on different college campuses.”

One of our biggest challenges is how 18- to 22-year-olds view the world. They’re still developing as adults and, typically, they’re not yet responsible drinkers."

Samantha Hughes, coordinator of Kenyon's civil rights and Title IX office

Organizers included leaders from fraternities, student government and other student organizations, Myers said, and the aim was to encourage conversations about sexual assault and how to create a community where it was not acceptable.  

“Not Alone,” a 2014 report from the White House Task Force to Protect Students from Sexual Assault, suggested additional ways that colleges and universities could reduce sexual misconduct. While Kenyon already has some of those programs in place, Hughes said more are being added this year. For example, Kenyon is training students in bystander intervention to encourage them to intervene when it appears there’s a danger of sexual misconduct. And Hughes is trying to find ways to engage men in the sexual misconduct conversation through the training of student athletes and groups that throw parties on campus.

“There’s a lot of criticism that [colleges are] telling women how not to get raped but not telling men not to rape,” she said. “We’re working to change that perception.”

For several years, the Title IX staff has given Kenyon student athletes a 90-minute talk on the law and Kenyon’s policies, said Chris Monfiletto, head football coach. That’s followed by meetings with coaches trained as sexual misconduct advisors.

“The more education they can get, the better,” Monfiletto said. “Obviously, we don’t want sexual misconduct to happen.”

Surveying the social scene

Still, recent graduate Annaliese Milano ’16 thinks the College isn’t doing enough to wipe out a culture she said has allowed sexual assaults to happen on campus for decades. She wrote extensively about the issue last spring in an online, independent student blog, The Kenyon Thrill.

“You have the same risk at Kenyon as you do at other schools,” she said in an interview. “Nothing has changed, even though these issues have been talked about at Kenyon for 20 or 30 years. Kenyon is a great place academically, but is very similar to other universities when it comes to dealing with these issues.”

Milano believes — and some other vocal alumni concur — that having fraternities on campus, living in groups in campus housing, contributes to sexual assaults on campus.

President Decatur sees fraternities in a different light. While he said the campus needs to discuss behavior associated with “toxic masculinity that can exist in certain climates,” he noted that “many of the same toxic elements that lead to sexual misconduct” are found on campuses without Greek life.

“Focusing on ‘Do we eliminate Greek organizations or not’ is something of a red herring,” he said. “It doesn’t get at the root cause.”

Elizabeth Eder ’17, president of Kenyon’s Greek Council, says that while it’s easy to blame one group for sexual misconduct, removing fraternities from campus would not solve the problem.

“I would not pin the blame on any single-sex organization,” she said.

Rather, she suggests that Kenyon welcome more sororities to campus — there are currently four compared to seven fraternities — or other all-women groups.

Luis Gomez ’17, president of the Alpha Delta Phi fraternity on campus, said that Kenyon should focus on protecting the community and teaching everyone on campus which steps to take when something inappropriate happens.

“I cannot speak for every fraternity but we, the ADs, do our best to provide a fun and safe environment for everyone,” Gomez said. “Choosing to ban fraternities does not change the culture of sexual misconduct. This problem is larger than any one organization or any one type of organization; it can only be resolved by coming together and directly speaking out against wrong actions rather than blaming members of our community who try to provide safe spaces on campus.”

This problem is larger than any one organization or any one type of organization; it can only be resolved by coming together and directly speaking out against wrong actions."

Luis Gomez '17

Gomez added that he is a “firm believer that bystander intervention, if done properly and by every single student, would do much more in creating safe spaces than banning fraternities or a much stricter alcohol policy.”

Decatur said he’s seen no evidence suggesting that Greeks, who make up 25 to 35 percent of Kenyon students, are accused more often than others of sexual misconduct at Kenyon.

But he does believe that a “hypersexualized” culture nationally and a lack of positive sex education in high schools contributes to the problem.

“Adolescents aren’t taught what a healthy sexual relationship is,” he said. “That’s a real challenge we face.”

Moving forward, together

Alumni and students want and expect action from Kenyon.

“Kenyon can do a lot better,” said Rhiannon Suggs ’15, who was a Sexual Misconduct Advisor when she was a student. “They need to figure it out.”

Heidt noted that sexual misconduct is “something that happens pretty much everywhere there are sexually active people, and I hope it’s something that we as an institution, we as a country and we as a planet can overcome.”

Decatur wants alumni and students to know that Kenyon takes the issue of sexual misconduct seriously.

The independent review on the issue, which is being conducted by attorney Rebecca Leitman Veidlinger of Ann Arbor, Michigan, is scheduled for completion around the end of fall semester. Decatur also has increased the staff for Title IX issues, from one part-time person to the equivalent of two full-time people, as the campus tries to meet national standards and address underlying issues.

Olivia Cucinotta ’18 said she is encouraged by the open campus discussion on the issue.

“I’ve been wanting people to pay attention to this subject for a long time,” said Cucinotta, a current Sexual Misconduct Advisor. “I’m optimistic, because even if that conversation is difficult, at least all this dialogue is happening.”

This story includes sections written by Elizabeth Weinstein, "Fairness for All," Anna Bloom '04, "A Fighting Chance at Change," and Gina Maistro Smith P'18, "A National Conversation." Jump to the bottom of the page for more information about consent, applicable laws and the relationship between alcohol and sexual assault.

Fairness For All

The flip side of the "Dear Colleague" letter —By Elizabeth Weinstein

Tiitle IX cases are often fraught with emotion from beginning to end. Not every case is clear-cut — and no one walks away a “winner.” Therefore, an understanding of the concerns of both the victim and the accused is critical to any discussion about sexual assault on college campuses.

The U.S. Department of Education’s Office for Civil Rights (OCR)’s 2011 “Dear Colleague” letter brought the issue of sexual assault to the forefront for colleges and universities, but powerful voices are raising new concerns for educational institutions regarding the rights of the accused. These concerns are now playing out in courtrooms around the country, and a small but growing minority of those court cases involve the rights of students accused of sexual mis-conduct violations.

Critics are asking if colleges and universities are really equipped to adjudicate sexual assault cases in a way that is fair to both the victim and the accused. As institutions face increased pressure from the government and from activists to end sexual violence on campus, have the accused’s rights been compromised?

United Educators (UE) — an organization that provides liability insurance and risk management services to nearly 1,300 schools, colleges and universities throughout the U.S. — conducted a 2015 analysis of claims reported to UE by member institutions between Jan. 1, 2011, and Dec. 31, 2013.

Of the sexual assaults reported to UE, more than one-fourth (28 percent) resulted in litigation. Most litigation against institutions was victim-driven (68 percent), while nearly one-third (32 percent) was brought by perpetrators (and about 20 percent of perpetrators’ requests were granted by courts).

Robb Jones, senior vice president and general counsel for claims management at UE, said that in the year since the report was released, he has noticed an uptick in the number of lawsuits filed against colleges and universities by students who have been accused of sexual assault.

According to a March 2016 CBS News story, U.S. colleges and universities that are “trying to respond decisively to complaints of sexual assault are getting slammed with lawsuits from men who say they’ve been unfairly suspended or otherwise punished.” Since 2013, the article notes, at least 75 men have sued their schools, “complaining largely of reverse discrimination and unfair disciplinary proceedings.”

The UE study hypothesized that students accused of sexual assault may turn to litigation as a means to repair their reputations. It found that the most frequent allegations made by the accused in lawsuits against educational institutions fell into the following categories: negligence and breach of contract claims stemming from the process of adjudication (e.g. the sanctions were too harsh); Title IX (e.g. the policies and process were inherently discriminatory toward men); intentional infliction of emotional distress; and due process violations.

In May 2016, a group of 21 law professors at top law schools released an open letter that took issue with OCR and the “Dear Colleague” letter. The professors wrote, “We recognize that sexual harassment represents unacceptable conduct, and those found responsible should be appropriately sanctioned. … In pursuing its objectives, however, OCR has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment, thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding. ... As a result, free speech and due process on campus are now imperiled.”

Kenyon political science professor Tim Spiekerman, who has been asked twice in recent years to advise students accused of sexual assault, said the spate of Title IX-related lawsuits should not come as a surprise. “Americans like to sue,” he said. “As with lawsuits in general, when things don’t go their way, some turn to the legal system in hopes of a remedy. Both complainants and respondents sue.”

The 2011 interpretation of Title IX by the Department of Education (spelled out in the “Dear Colleague” letter), he added, “has been controversial from the get-go. The law in this area is not settled, so lawyers are eager to make their mark, and those who think they’ve been wronged figure they have a shot at setting things right.”

As examples of the concerns that have been raised by critics, he pointed to the use of the “preponderance of the evidence” standard, as opposed to a higher “clear and convincing standard,” that many schools used before the “Dear Colleague” letter; the appeal rights of a victim if the accused is found not responsible for a policy violation (as the victim has no similar appeal right in a criminal proceeding); and the fact that OCR has put limits on the use of direct cross-examination.

Most people, he said, never imagine that they or their children will be accused of sexual assault, and therefore “never give much thought to the procedures schools use to adjudicate such unfortunate matters.” Although the rules vary from school to school, Spiekerman noted, “I know some worry that [sexual misconduct complaints] will be swept under the rug for fear of bad publicity, but that just isn’t true here.”

A Fighting Chance at Change

—By Anna Bloom '04

I remember the moment I decided to go to Kenyon.

I was on my one last trip to Gambier to make up my mind. It was spring, and the campus was showing off. Lead-paned windows in classrooms and dorms were unlocked to let the fresh air in, and everything seemed fantastically green and resplendent.

I finished talking to the cross country coach and headed to the stands at McBride Field to take a moment to think. It was down to a few options, but by going to Kenyon, I realized I would be following my heart. It felt like a place where I could fall in love — with people and with ideas.

This was in the good old days before cell phones, so I walked down from the stands and found a pay phone to break the news to my dad, a member of the Class of 1973.

We laughed.

After my dad went to Kenyon, two cousins followed in his footsteps. Throughout my childhood, I’d make the six-hour drive from Chicago to go to reunions and graduations. As a result, early on in the college exploration process, I drew a line through Kenyon in a giant undergraduate guidebook with a note about wanting to go someplace — anyplace! — other than the school where my whole family had gone. And here I was, after more than a year of flying across the country to vet colleges and agonizing over all the possibilities, choosing the place I’d known all my life.

This initial enchantment was short-lived. Just a few months later, a fellow student upended my life, and distressingly so.

The chilling experiences recounted in so many recent news stories and on personal blogs do not exactly match the details of how I was assaulted as a Kenyon freshman 16 years ago. What’s hauntingly familiar are the victims’ accounts of their profound sense of helplessness and isolation.

After the assault, I struggled to connect in the ways I’d hoped to, with people and ideas. At the time, I didn’t see the College’s policies as my main roadblock. What troubled me most was the prevailing attitude on campus. The few people I told about the incident often second-guessed me. And the one or two others who were actively speaking out, calling attention to the terrible wrongs they had suffered, were perceived as attention-seekers. The default setting on campus seemed to be: You’re making too much of this.

When you sense your feelings being dismissed, mocked or minimized, and nowhere feels safe, there’s not much strength left over to engage with others. Speaking up looks like asking to double down on the pain. You make no big plans. You run for cover to do the minimum required to simply hang in there.

Today, there is a new level of openness, made possible, in part, by the internet. This amplifies new voices, connects victims and brings about a public awareness and outrage about sexual assault and violence that’s long overdue. This spring, one viral blog post concerning Kenyon College and Title IX gave many alumni the nerve to reach out. Within a matter of a few months, nearly 1,300 alumni — men and women — formed a group, Kenyon Alumni for Title IX, to share experiences and ideas.

This group enables people to reveal heartbreaking truths about their experience and sometimes for the very first time. I’ve heard stories from alumni that shook me to my core. It’s devastating to know that so many Kenyon graduates felt unsafe, dismissed or silenced at the College, and how many of them continue to wrestle with sexual assault and its aftermath years, and sometimes decades, later.

And yet, now, more than ever, I’m optimistic.

By virtue of this newfound openness, we’ve found new allies and lifelong friends across generations, genders and backgrounds. For many, this creates a sense of belonging unavailable to us when we were students. In this way, we are doing more than commiserating and hoping for change, we are starting to heal.

This group enables people to reveal heartbreaking truths about thier experience and sometimes for the very first time."

Anna Bloom '04

This group is also starting to make some waves. We sent 100 flower bouquets to a forum about sexual assault for students on campus. We wrote a letter to Kenyon’s president signed by more than 700 alumni. We created a blog to give us a public voice in the broader discussion happening across the country. In June, we established the Kenyon Title IX Fund to empower students to raise awareness and reshape the culture at the school in a way that’s meaningful for them.

The kind of lasting change Kenyon needs will take time and effort. Along with changes to our policies, we’ll need to take a closer look at what it means to care about one another in the big and small ways that matter. We’ll need to examine the toxic, unconscious default settings in campus social life that lead to an environment where sexual assault occurs. To create a world where men and women dare to shut down insensitive jokes and behavior, even if it means sacrificing a moment of comfort.

Based on what I’ve seen this year, I think we have a fighting chance to help future generations avoid the trauma and deep sadness that many of us regrettably experienced at Kenyon — to make it obsolete.

People are finally looking at the things that are hard to see and talk about, and appreciating what’s truly at stake when it comes to sexual assault and violence. That readiness to counter the status quo is a giant step forward. Now is the moment to speak up and invest in this issue. Let’s make the most of it.

Anna Bloom ’04 is a designer and writer who lives in San Francisco, California. Along with Jeb Breece ’04, Theo Bark ’02 and Deanna Lesht ’07, she founded the Kenyon Title IX Fund to empower students at Kenyon to change the culture on campus when it comes to sexual assault. To learn more, visit kenyontitleixfund.org.

A National Conversation

Gina Maisto Smith P'18, attorney, Title IX expert and Kenyon parent, explains sexual and gender-based offenses in higher education through a legal and national lens.

I have enjoyed more than my fair share of time on Middle Path. Through my son and lifelong friends who are Kenyon graduates, I have a close-up view of the gifts of the College on the Hill. Kenyon’s rarified intellectual and experiential environment naturally invites a comforting sense that it is insulated or distant from the ills of the world.

As an attorney, educator, advisor and former career prosecutor, I also have an intimate view of the impacts of sexual and gender-based harassment and violence on victims and communities. For more than 30 years, I have walked with thousands of individuals and hundreds of institutions as they have traveled along their paths through campus and criminal justice processes. This overview provides a glimpse of the legal and national context that colleges like Kenyon must navigate.

College and University Obligations

No institution is immune from the destructive behaviors that plague society at large. The destructive behaviors of central concern on college campuses across America are sex- and gender-related offenses. Aside from a practical realization that these things can happen at Kenyon, members of the Kenyon community might be surprised to learn that the broad panoply of federal laws and regulations pointed at solving these problems apply to a private institution like Kenyon every bit as fully as they do to the largest of state universities. By virtue of federal funding, including student loans for Kenyon students, Kenyon is firmly within the grasp of the federal government and its measures to address these concerns.

American higher education is at an important crossroads. With more than 200 investigations opened since 2011, the federal government has focused significant energy on enforcement efforts that seek to eliminate sex discrimination and improve campus responses.

Colleges have unique legal obligations to prevent and respond to sexual assault, dating violence, domestic violence, stalking and sex- or gender-based discrimination. Those obligations flow from a complex set of federal and state laws, regulations, and guidance, including Title IX (of the Civil Rights Act of 1964), the Jeanne Clery Act (Clery Act), the Violence Against Women Reauthorization Act of 2013 (VAWA) and the Family Educational Rights and Privacy Act of 1974 (FERPA). (See below.)

Campus vs. Criminal Process

Separate from any involvement of law enforcement in sex- and gender-related offenses, educational institutions have an independent Title IX obligation to investigate misconduct through a civil rights lens. Campus civil rights investigations are distinct from criminal investigations conducted by law enforcement. Civil rights processes consider the impact on the educational environment for the victim and others; criminal justice processes evaluate criminal culpability.

Under federal law, colleges must provide adult victims with the right to choose whether to report a sexual assault to law enforcement, and colleges have no independent obligation to notify law enforcement. In Ohio, however, state law requires all citizens to report felonies to law enforcement. Adult victims may choose not to participate in criminal processes and law enforcement has the option to decline to investigate or prosecute a reported crime.

Finally, as a policy matter, the federal rubric presumes that many perceived barriers to reporting to criminal authorities may be eased on a college campus. This seems to be borne out in practice, with many students choosing to seek recourse through campus processes, but eschewing criminal justice processes. In the end, educational institutions are required to take appropriate action under campus policies, regardless of whether the matter is reported to law enforcement.

Unique Challenges

Colleges and universities confront many challenges in managing these investigative and quasi-judicial processes. The criminal justice system involves the inter-workings of distinct agencies (e.g., police, prosecutors, defenders, social service workers, courts) with separate functions. In stark contrast, a college is required, within a single agency, to be all things to all people — to foster a climate that prevents incidents and promotes reporting; to provide support and advocacy for complainant and respondent; to provide an impartial, reliable and thorough investigation; to provide prompt and equitable grievance procedures; and to provide impartial adjudications
and appeals.

No institution is immune from the destructive behaviors that plague society at large."

Gina Maisto Smith P'18

Very few, if any, colleges possess the resources for effective separation and fulfillment of any of these roles, let alone all of them. Even if colleges do have the resources to exercise oversight of the entire process, they inexorably find themselves facing irreconcilable perceptions of conflict or bias in the context of consent-based credibility cases of sexual assault.

Although complainants and respondents benefit from the privacy protections of FERPA, the campus community is left without specific information — or worse, with misinformation — about facts and outcomes. This misinformation exacerbates a climate of distrust, as gaps in information on many campuses tend to be filled with negative inferences about the parties, the process and the personnel involved in campus responses. Those negative inferences can fuel civil and regulatory actions by complainants, or respondents, or, in some cases, both parties. In each instance, the impact of the diverse and clashing viewpoints creates fissures in the campus community, leading to breakdowns of trust among the various community constituencies.

A Paradigm Shift

During the past five years, colleges and universities have experienced a paradigm shift in the implementation of Title IX and Clery. This has been driven by powerful student activism, new guidance pronouncements from the Department of Education (DOE), new federal and state laws, increased federal enforcement efforts, targeted media attention, civil lawsuits and the efforts of college administrators.

The conversations on campuses — from board rooms to dorm rooms, coffee houses to dining halls — have highlighted the experiences of those impacted by sexual harassment and violence. While painful, those conversations are an important catalyst moving colleges and universities toward higher levels of responsibility and accountability for sexual offenses and discrimination on campus.

While the high-level mandates in the form of federal, state and local laws may be clear, no consensus yet exists regarding the most effective way to achieve these mandates or to sustainably commit the resources necessary to support them. In the meantime, however, this paradigm shift has catalyzed increased awareness and improved campus responses.

Gina Maisto Smith P'18 is a partner with Pepper Hamilton LLP and a former career prosecutor with the Philadelphia District Attorney’s Office, where she specialized in investigating and prosecuting sexual violence, child abuse and domestic violence. Smith has a national practice focused on the institutional response to all aspects of sexual misconduct matters. She served as an expert to the DOE-negotiated rule-making committee for VAWA and is an advisor to the ALI Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis. She is the parent of a member of Kenyon’s Class of 2018.

Consent, defined

Criminal sexual assault cases often boil down to one person’s word against another’s. That’s perhaps even truer on college campuses, where both parties in a sexual assault case are usually students, and alcohol is often a factor.

Consent is central to that debate. In 2015, Kenyon unveiled a new Title IX policy. Every incoming student receives notice of the policy, which is available on the school’s website. It defines consent as “clear, knowing and voluntary permission” to have sexual activity of any kind. It does not require verbal consent, but strongly suggests it.

The policy further outlines consent in these ways:

• Each party must give consent and each must obtain the consent of the other.
• Consent can be given by words or actions, but if ambiguity arises during the sexual activity, the parties should stop and verbally clarify consent.
• Each must fully understand what they are doing. Someone who is incapacitated, unconscious, asleep or physically helpless cannot give consent.
• “No” always means “no” even if it sounds insincere or indecisive.
• Silence does not indicate consent.
• Each participant must consent to each type of sexual activity. Consent to one type doesn’t mean consent to another type.
• Consent is not consent if it results from physical force, the threat of physical force, intimidation
or coercion.
• A previous relationship with a person doesn’t constitute consent. Consent must be given each time there is sexual activity.
• A person who does not physically resist sexual activity has not necessarily given consent.

What the laws say:

Title IX is a federal civil rights law that prohibits discrimination on the basis of sex or gender — including sexual harassment and sexual assault — in educational institutions that receive federal funding. Title IX requires educational institutions to take immediate and appropriate steps to investigate all reports of sexual assault and take prompt and effective steps reasonably calculated to eliminate a hostile environment, prevent its recurrence and address its effects.

The Clery Act, as amended by the Violence Against Women Reauthorization Act of 2013, requires federally funded educational institutions to publish information about crimes on or near their campus. It also requires implementation of policies, procedures, training and programs regarding sex offenses, including domestic violence, dating violence and stalking offenses.

FERPA is a federal privacy law that prohibits educational institutions from sharing information contained within a student’s education record, including involvement in student conduct-related proceedings.

Alcohol and sexual assault: An uneasy relationship

Alcohol appears to play a significant role in the problem of sexual assault on college campuses.

A study by United Educators found that 78 percent of sexual assault claims by the colleges and universities it insures, between 2011 and 2013, involved alcohol. The study found that one in three victims were drunk, passed out or asleep.

In a 2015 Campus Climate survey, 61 percent of Kenyon students who said they’d been sexually assaulted on campus or at a Kenyon event said they’d probably been drinking. Seventy-six percent of those students said their attackers probably had been drinking.

While being drunk is not an excuse for sexual assault or for being sexually assaulted, Kenyon President Sean Decatur said there’s a high correlation between alcohol use and sexual misconduct.

“I don’t think if we solve the alcohol problem we solve the sexual assault problem, but we must think carefully and study it,” he said. “Students need to understand what responsible drinking means.”
That’s difficult with a population made up of young people.

“One of our biggest challenges is how 18- to 22-year-olds view the world,” said Samantha Hughes, coordinator of Kenyon’s Civil Rights and Title IX office. “They’re still developing as adults and, typically, they’re not yet responsible drinkers.”

Since drinking alcohol is prohibited in Ohio until the age of 21, much of the campus can’t legally drink and underage students aren’t supposed to be served at college parties. But, in reality, underage students do drink on campus, in their dorms and at parties, in part because they’re living away from home for the first time without parents or guardians to monitor them.

That’s significant because, based on the 2015 Campus Climate survey, 85 percent of Kenyon students who were sexually assaulted at college said it happened in their first or second year of school.

Decatur said that, in general, more efforts are needed to provide alcohol-free entertainment so students don’t feel that most campus social life revolves around drinking.

“We need to debunk the myth that drinking is integral to social life at Kenyon, and make students aware that not drinking is an acceptable choice,” he said.

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