The toughest issue on (any) campus
Sexual misconduct: the complete panel discussion
On May 26, 2015, the Yale Alumni Magazine convened a panel of experts to discuss one of the most fraught topics on campuses today: sexual misconduct and how colleges and universities should deal with it. An excerpt of their discussion appeared in the July/August 2015 print version of the magazine. Below is the complete discussion, slightly edited for length and clarity.
Joanne Lipman: There’s been so much conversation and controversy about college approaches to sexual misconduct, particularly in the last four years since the “Dear Colleague Letter” went out from the Department of Education. That talked about a whole variety of issues, but among them was this idea suggesting colleges look for a preponderance of evidence in sexual misconduct cases, which has been very controversial because some people believe that’s a lesser standard of evidence, which is perhaps not fair to one side or the other.
We’re going to start with an idea of what’s going on generally with the sexual climate on college campuses—not just the Yale campus. Then we can talk a little bit more specifically about some of the guidelines that are in place in Yale and other places and at Oberlin.
Perhaps we can just start with a question. Is there more sexual misconduct now than there used to be? There’s an argument that, because of binge drinking, and particularly since 1984 when the drinking age changed from 18 to 21, there’s been more binge drinking and as a result more sexual misconduct on campus. Others argue that it’s simply that the definitions have changed or the awareness has increased. In your assessment is there more—or is it just that we’re more aware?
Nancy Gertner: So, “more” relative to when we were in school? It’s really hard to say. There’s no question that we are way more aware of it now. Part of the definitional issue is related to the reporting issue. What women today may appropriately experience as sexual misconduct, we did not. We were the blaming-the-victim generation. We thought it was our fault. To some degree, there’s much more awareness. It may well be the very same conduct that we’re talking about then as now, but women are more empowered to name it than they were before.
I also think that you can’t deny the impact of alcohol and drugs on campus. The discussion, I’m convinced, is now wrapping around—going back to parietals. [Parietal rules govern dorm residence behavior, especially visits from the opposite sex.] Parietals were just about to be eliminated my last year at Barnard—very exciting. Things opened up, and you suddenly went to co-ed dorms, and suddenly to a very different culture. Now we’re trying to deal with misconduct by adjudicating, by processes after the misconduct took place, to try to figure out who did what to whom.
I’m beginning to wonder whether the conversation ought to go back to what the rules are, the underlying rules, and the prevention issues. You see a little of this in Dartmouth, when they prohibited hard liquor on campus. The issues that are raised by dealing with the problem only after it has happened, through an adjudicated process that is confidential, can’t possibly be underestimated.
I’m not sure that it’s more, but certainly the alcohol fueled very different interactions between men and women.
Joanne Lipman: Meredith, you’ve been at Oberlin for 12 years? Have you seen any difference in that time frame?
Meredith Raimondo: I don’t know if that’s the time frame that I would look at. I do think there are some historical shifts that help us understand what feels different about this moment. I think we’re trying to get at that when we ask, is there more. I’m not sure that quantity is actually what we need to know.
I agree with Judge Gertner—the end of in loco parentis on most college campuses and the rise of coeducation are clearly part of the story. Part of what we’re seeing, I think, is an unintended consequence of coeducation. I don’t see that as an argument against coeducation. But in many cases our institutions, which were not accessible to women but have become accessible to women, and certainly the women’s institutions that have now invited men in as an economic survival strategy, did that without really thinking about, I think, what would be needed to equip people with the skills to navigate those environments.
Then you add into the mix alcohol—that’s certainly the number-one drug that we see that’s a problem. We don’t have much of a culture to help people develop healthy and responsible relationships to alcohol. We have a culture that encourages the use of alcohol to facilitate sexual interaction for all ages of people. It’s no wonder that there are challenges that emerge at the time when people are entering a space that allows for great experimentation—and should—but should allow that in a way that is safer. I also agree with your point that getting out in front of the prevention piece is really where we need to go.
Lipman: Alexandra and Emma, since you’ve been on campus for the last number of years, this has been a number-one topic of conversation on campuses nationwide. Has that changed, do you think, the behavior of students, or is this something that is still at the conversational level that hasn’t trickled down to a change in actual behavior?
Alexandra Brodsky: I was just away from campus for a year. I graduated from the college in 2012 and then took a year off and then came back to law school. While I certainly don’t pretend that I understand the undergrad party scene at this point, it’s been remarkable for me to see the changes in the conversation.
When I was a senior there was an editorial published in the YDN [Yale Daily News] saying that if we had a rape culture, students would talked about their favorite kind of rape at breakfast. When I was a junior the YDN published its own editorial saying that the reason that DKE [the fraternity Delta Kappa Epsilon] had gone around chanting, “No means yes, yes means anal” was that they knew that the Women’s Center was really easy to get riled up and they thought that would be fun.
Now that I’ve returned to campus it’s been really wonderful to see undergrads who no longer feel like they have to prove that this is a problem. They no longer feel like they have to argue that it is an issue worthy of debate and care.
I’m not in a much better position to speak to whether violence itself has changed in any way on campus and whether sexual practice has in any way changed. But I just want to note quickly that while I certainly don’t deny that there is a relationship between alcohol and sexual violence, I’m always hesitant to center that, because I think that we forget that there’s a lot of violence that occurs in relationships when people are sober. There’s a lot of violence that occurs when there’s alcohol present—but just because these are college students and there’s always alcohol present, and not necessarily because alcohol is the driving force there.
Emma Goldberg: I think certainly there’s been an increase in the number of instances of sexual misconduct reported on campuses. I think that in explaining that, you have to look less at the actual change in behavior and more at just this tremendous shift in the number of students who are aware of their rights under Title IX. Because of this tidal wave of student activism, students are increasingly aware that they actually do have the right to a safe college campus and they do have the right to take action when they experience any instance of sexual misconduct.
When I’m looking at any sort of shift that’s occurred, even while I’ve been an undergraduate, it’s been much less in the way that students behave at parties and much more in the way that students feel the capacity to take action about what happens to them and to take agency over their own situation, and to actually make reports of sexual misconduct. That’s still something that is in the works, but we really do largely have to credit the work that has been done by student activists like Alexandra and the shift in campus conversation.
At Yale we have to thank the 2011 Title IX complaint that was filed against Yale, which really invigorated students and enlivened the campus to debate on this issue. Just from looking around in my classroom, students are feeling increasingly empowered.
I still hear conversations where you’ll hear students say, Title IX has to do with sports teams, or something like that. But increasingly students are realizing the massive reach that Title IX has on campuses and the tool that it can be to students in fighting the rape culture on campuses.
Gertner: I think that your points are very interesting. You are saying people are more likely to report sexual misconduct than they had been before. To be sure, that’s a good thing, but begs one of your questions, which is, what are they reporting? What is the definition of misconduct? Are they reporting a whole range of conduct, from clear predation to what [Harvard law professor] Janet Halley describes as drunk sex? “More likely to report” doesn’t necessarily answer the question about whether or not the definitions have changed.
Goldberg: I’ve served as an advocate for a number of my friends who have been going through the process of reporting and I have interacted with many students who have questions about this process. I’ve seen the tremendous toll that it does take on students going through this process. I want to emphasize that students don’t go through the process of reporting, whether it’s informal or formal, just for the hell of it. They do it because they feel that it is something incredibly important that they want to take on and because they have been through an instance of sexual misconduct that they feel is interrupting their emotional health and their educational experience. I’ve heard a lot of debate on campus asking, has our system gotten too lenient? Are people just reporting sex that they regret? What I always answer to these sorts of questions is, this isn’t an easy process. This isn’t something that someone just takes on for attention or as any sort of retaliation. It’s a tremendously taxing process and something that students take on with an appropriate amount of gravitas.
Lipman: Is there a broad understanding of the definition of sexual misconduct? Is it a black-and-white issue that people understand, or is there any confusion about that?
Gertner: I absolutely agree with what you just said, Emma, about the kind of gravitas with which students report. It’s an incredibly hard and serious thing to do. I always know, when a student reports to me, that some harm has happened. That’s just the truth. That harm may or may not be captured by this particular college policy, but a harm has happened. I think if we stay with the truth of those harms, we’re more likely to be able to serve all of the students in these processes, whatever modes of resolutions we follow to address those harms.
One of the other changes, and this gets back to [Joanne’s] previous question too, is that student activists over the last, probably, 25 years have been working incredibly hard to change the way we think about consent in this culture, in ways that to me seem entirely appropriate—so the debate about what is now typically called “affirmative consent” has a long history.
I think students who are growing up today do have a clearer sense that consent has to be positive, clearly expressed, mutually understood. It’s specific to each and every act. Those kinds of values for many—not all, but many—students of this generation are different than perhaps 25 years ago and in really important ways.
Lipman: We’re going to come back to affirmative consent. Just for context, especially for our younger alums: I’m an ’80s graduate. When I graduated from Yale in 1983, we didn’t have any sense of what sexual harassment was, or sexual misconduct, or inappropriate touching. We had [the concept that] date rape was when a guy slips you a mickey and you’re unconscious.
I think it’s interesting for a lot of alums to see how the culture has changed. There’s much higher awareness of all the issues that we’re talking about today. But that to me raises a broad question about universities. Some say the priority of a college as an institution is to protect itself first and foremost—so how is it appropriate for a university to even be adjudicating cases like this, when the outcome could have a negative effect on the entire institution?
Brodsky: I think that not taking action can also have a negative effect on the entire institution. We have to remind ourselves why schools are involved in this anyway. This is probably the most common question that Know Your IX [the national nonprofit she codirects] gets: isn’t this criminal? Shouldn’t we just hand this over to the cops?
Title IX of the 1972 Education Amendments doesn’t say anything about violence. What it says is that all students should be able to learn and have equal access to educational opportunities regardless of gender. It’s through pioneering feminists’ work—that came from Yale—that we got the Title IX that we have today, which encompasses sexual harassment, including sexual violence.
I take the point that there are some weak incentives that schools are dealing with. Those incentives are pulling them in all directions. For years, the incentive was very clear—to hush it all up and avoid any public discussion, avoid any headlines. I think that now schools are starting to realize that they might make headlines either way and so are trying to deal with that mess. If schools don’t address these harms, what that means is that students who are disproportionally—though not always—women are going to face unconscionable barriers to their education. It is really hard to learn when you have to share a dorm with your abusive ex. It is really hard to learn when your professor is harassing you. It is really hard to learn when you have to share a library with someone who raped you.
When we think about the students who face these harms—disproportionately women, queer students, trans students—we recognize the ways in which school inaction in the face of these harms would serve to preserve male dominance of universities and to entrench male dominance.
I bristle at the idea that dealing with these harms at all is going to harm the school. I think not dealing with them would essentially return us to the very early days of coeducation, when we [women] were not fully part of university life despite formal admittance.
Gertner: That’s a great point. I was here in 1968, which was when coeducation began. Essentially, Yale opened its doors to women—and did nothing else. I don’t think the universities can walk away from this. I don’t think that’s an option. They have students here under their tutelage for undergraduate work, for graduate work. They have responsibilities to their students. Even if Title IX didn’t exist, they would have responsibilities, but Title IX plainly confers responsibilities that have to do with equal educational opportunities. I don’t think the university has any way of backing away from this.
The conversation that Alexandra and I have been having for some time, which is very interesting, is that it’s reasonable to step back and say, what is appropriate to the university and the university setting? What standards, what substantive standards, what procedural standards? And what’s appropriate to the criminal setting?
It’s appropriate that the university has to do lots of things vis-à-vis its students that an employer would not necessarily have to do vis-à-vis its employees. It has a very different relationship, maybe not parens patriae, but still something along those lines. The criminal system is entirely different. But there is an overlap, which is the overlap that we have to talk about.
The issue I’m trying to get at is twofold. Jed Rubenfeld at the Yale Law School has argued that these cases should be handled by the legal system and not by any university. The second piece of it is, even if it is handled by the university, does the university have the resources to adjudicate cases like these, which are always so sensitive?
Raimondo: I agree it would be irresponsible to walk away. Institutions of learning exist so that learning can take place. Violence has a profound impact on learning. It strikes me that this is an extension of the history of exceptionalism around sexual violence. There is no other major crime that, if a student committed it, we would say, maybe the institution shouldn’t make a decision about that student continuing to be part of the student community.
I was reading this morning about students expelled from Wesleyan for dealing drugs that led to a series of overdoses there this spring. It’s not controversial for the institution to separate from those students. I think there is an educational realm that institutions belong in, regardless of whether the criminal justice system is involved.
Watching the controversy over the Rolling Stone article [about a gang-rape claim that turned out to be unsubstantiated] blow up at exactly the moment of the Black Lives Matter protests brought home that it’s hard for me to make sense of any kind of easy turn to the criminal justice system for a solution.
Lipman: The difference is, in the case of a student dealing drugs, it’s the criminal justice system that deals with the drug felony and the school that expels them, as opposed to the school being the one who investigates and makes the decision about whether they were dealing drugs and then takes action.
Raimondo: Right, but a conduct case works like a conduct case. I mean, to expel any student you gather information and decide if a policy has been violated such that a student would have to separate from the institution. It’s very clear that schools should not be engaged in the criminal process of investigating complaints. We don’t have forensic capacity. We don’t have the kind of investigation resources that police departments have. But we have other kinds of investigation capacities that are relevant to the civil rights question around access to education.
Goldberg: Schools also do have a bit of flexibility that the criminal justice system doesn’t have, that I would argue makes them particularly well suited to adjudicate these kinds of cases. For example, let’s say a student is going through a case here for sexual misconduct—the police can’t, for example, get that student extensions they need, like an extension on their paper or a few extra days to take a final.
A school can work around the specific needs of a student who is going through one of these traumatic cases. I think that puts the school system in a unique position for addressing these sorts of cases. Schools also have the flexibility to design systems for dealing with sexual misconduct that are sensitive to students’ emotional health and mental health. For example, in Yale’s system for addressing sexual misconduct the complainant will never have to directly face the respondent in person if they file a complaint of sexual misconduct.
Gertner: Then, too, the standards are different. Sexual harassment is not a crime. It is a civil action. And it is covered by university policy. I spent last week at the American Law Institute, where they were debating a change in the crime of sexual assault. Should there be an affirmative consent requirement? Should it include just sexual contact? Exactly the same issues. One can argue that, in fact, any kind of more-subtle issues, any issues that have to do with sexual harassment, are much more appropriately dealt with in the university than they are in the criminal justice system.
It’s not just that the procedures are different. It is that the conduct that is sought to be regulated is arguably and appropriately broader in the university setting than in the criminal setting. Where they overlap, which happens a fair amount, then there are complexities to the system. How does someone participate in the university process without waiving his rights in the criminal process? The issue is much broader in universities than it is on the criminal justice side.
Lipman: That brings us back to the 2011 letter that we started talking about earlier—the “Dear Colleague” letter sent by the Department of Education. There has been a lot of discussion around how much evidence is required for sexual misconduct.
The Department of Education recommends a “preponderance” of evidence as opposed to “clear and convincing” evidence. Preponderance of evidence is a lesser standard. Is that the right way to go? I know there is an argument that says that this is not fair to the accused, who is generally a man.
Gertner: I was one of the 28 Harvard faculty signatories on the letter that opposed the Harvard University policy [for dealing with complaints of sexual misconduct]. What was troubling to me was not the [preponderance] standard in and of itself. It was that standard accompanied by considerably fewer protections.
In civil court, civil rights cases and sexual harassment cases are all evaluated by a “fair preponderance” standard. But those proceedings take place after discovery—people have exchanged information; after lawyers; after hearings presided over by a judge. It is one thing to go to a civil preponderance standard with all the procedural protections that preceded it. What was troubling at Harvard—I don’t know about anywhere else—was that there is a preponderance standard unaccompanied by any of those proceedings: no counselors for both sides, no hearing—no setting in which the accuser had to say what was going on and could be addressed by lawyers, even if not by the man accused.
Harvard’s is a fair preponderance standard unaccompanied by the protections of the civil justice system, which is what gave me pause. I would have fewer problems with it if it had those other protections as well. I do agree with the comment that it can’t be that sex has a higher standard than, for instance, plagiarism or some of the other standards.
Lipman: So, what’s important is to have those protections?
Brodsky: I want to make sure that we don’t conflate Harvard’s policy with the Dear Colleague letter. In many ways Harvard made changes that were not required. Unfortunately, theirs was one of the big, high-profile policies to come out afterward—so there’s a popular sense that Harvard’s policy was what the Dear Colleague Letter required. There are many points on which we agree that Harvard’s policy should be changed—in which case, the preponderance standard would be entirely appropriate.
I want to follow up on that point of not having an exceptional standard for sexual harms. Before the Dear Colleague letter, most schools did not specify any kind of standard for their student disciplinary hearings—which raises a question about student discipline writ large. But those that did specify a standard used preponderance. So I bristle a little bit when I hear that libertarian men’s groups are really upset about the preponderance standard for sexual assault cases—when that’s the standard that has been used when people have been kicked out of school for punching their roommate in the face, for cheating on an exam, for selling drugs even when there isn’t a criminal charge. We have this awful history in our criminal courts and in our civil courts and in student discipline of baking into our systems a skepticism of rape victims. I think we want to make sure not to do that here as well.
Lipman: Since the number-one issue [that Emma Goldberg’s report identified as a problem with Yale’s process] is confusion, is the answer to communicate better or is the answer that the process itself is too confusing and needs to be streamlined?
Goldberg: I believe that the process itself is working fairly effectively. One of the biggest recommendations that we are making in our report—and this is something that we’ve been working with the [Yale University] Title IX Steering Committee on—is developing more clear communications to students, so students understand who they can report to. There’s a lot of confusion among students about where to even begin the process. Do they begin by going to their residential college masters or deans? Do they begin by going to their academic advisers? There’s all sorts of confusion.
The Title IX Office is working on redeveloping their website and ensuring that during freshman orientation they are more clearly communicating to students how to navigate this process. That is a big issue that I believe the Yale administration should be working on and is working on.
Lipman: I should say that we invited Yale to participate in this session, but Yale declined. Alexandra, did you have any further thoughts on whether there’s a process issue or just a communication issue?
Brodsky: They are related, in that how complicated the process is can be directly related to how well the university can communicate it. I think that if the university spent some real time and energy figuring out what will make sense to students, it would help—even really simple things like, do students want a flow chart? Do they want one number that they call and someone explains everything? From there, it doesn’t matter if you have two or three committees.
This is not a widely held opinion, but I would really like to see these processes integrated into schools’ general disciplinary proceedings—with staff who are specially trained to handle sensitive issues. If you have a student who experiences another kind of grievous harm, perhaps is non-sexually assaulted, they should also have access to fair and supportive disciplinary procedures.
Goldberg: I don’t think it entirely comes down to communications. Having a better website, having more clearly communicated procedures, would greatly strengthen the Yale system. But there are also a number of procedural weaknesses that I believe can be addressed and that we enumerate in our report.
For example, many students have concerns about whether there’s proactive follow-up from administrators once they’ve filed a complaint; or the e-mail communication and protocol that goes on through the complaint process; and also the training that members of the UWC [University-Wide Committee on Sexual Misconduct, which decides on complaints made to Yale about sexual misconduct] received. So there are a number of procedural elements that we want to look at as well. I believe that these are some things that the university is committed to exploring and finding proactive solutions to in the coming months.
Lipman: Can we talk about “affirmative consent” for a moment? At every step of the way [during a sexual encounter], there has to be consent either verbal or very clearly otherwise. Is that realistic?
Nancy Gertner: I’m actually ambivalent about affirmative consent. When I was younger I would have said the burden of ambiguity should be on the man. The man should get an affirmative consent before he touches you and at every stage.
On the other hand, to some degree, requiring affirmative consent bears the promise of changing the relationships between men and women and arguably will enable—will require—women to take agency for sex. That’s not a bad thing: to say “I want it” as opposed to “I’m going to get drunk and who knows where it’s going to go.” That’s not a bad thing.
This is an interesting issue in the college setting. I feel very differently about it in a criminal setting, but in the college setting, will this change norms of behavior? It may. I think it’s a good thing if women take agency, because part of the dance comes from the fact that we were raised not to want it. If you have to only have sex when you say you want it, that’s not a terrible thing.
Goldberg: Yale has developed a great set of workshops on communication which are given to freshmen during orientation. One of the main messages is that, by the time we enter college, we are very capable humans and we have communication skills. It’s actually not that difficult to pick up on subtle body language and things that indicate enthusiasm versus hesitation. These situations often are actually not that ambiguous when it comes down to it. By the time we’re 18 we’re very capable of picking up on clear yeses or noes or hesitations. That’s actually not a skill that’s difficult to learn.
Gertner: Right, but I believe the issue is not so much reading the cues as it is the interpretation afterwards of the two parties.
Goldberg: Yes, but in terms of the way that things shift culturally, I would argue that these skills of communication and picking up on affirmative consent, versus noticing hesitation, are not things that have to be learned so much as things that people have to be conscious of in sexual settings or settings that involve alcohol and other factors.
Lipman: Affirmative consent is not just a Yale issue. It is required by a number of campuses all around the country. We are very fortunate to have Meredith with us, who has just been through this process at Oberlin, where you’ve created a new system. I wonder if you could tell us about it, because I think it’s a different way of looking at sexual misconduct on campus.
Raimondo: There are some similarities—I think we’re seeing some convergences as many campuses change their policy to a set of procedures. We’re a campus with a strong culture of local governance, which means that one of the trends nationally—which is towards professional investigators making determinations—was absolutely not something that our campus was comfortable with, in the sense that it did not feel like a process that ensured the rights of the accused.
The other issue I’m thinking about is the move nationally to provide trauma-informed grievance processes. You’re often trying to explain complex processes to somebody who is in a moment where we know, from the neurobiology of trauma, that processing is complex and may not be as effective. So, thinking about following up with written guidelines, flow charts, whatever—those kinds of things are really important.
In our process, reports are centralized through our Title IX Office. The Title IX team reviews those reports to determine the appropriate path for resolution. The two central questions are, what is the expressed preference of the reporting party and what does the balance of campus safety dictate?
For example, if a reporting party asks us to take no action, but we had multiple reports about the person who was being reported on, the institution might decide to take action—but that doesn’t obligate the reporting person to participate in any way. We try to balance that campus safety issue with respecting the rights and choices of people who are deciding how to use grievance systems.
Informal resolution is always an option, which, like at Yale, is any kind of voluntary agreement that we reach. You can do that easily in a case where someone reports and does not want the other party to be informed. You can do things that are creative and effective—like, figure out if the person who is being reported is part of group or a club or a team that could be targeted for training. That person doesn’t know what triggered it, but the institution is taking steps to try to stop that behavior and prevent it from happening.
If we are going to take disciplinary action, we use a hearing process that is fairly elaborate. It involves a neutral hearing coordinator, who is not a decision maker, and a panel of trained administrators. Students on our small campus—we’re just under 3,000—asked us to take both students and faculty out of the decision-making process, because of the impact both on social relationships and on educational opportunities. It’s pretty hard to sign up for a class with a professor who sat on your panel. We are working with administrators across the campus, from facilities to admissions to development, and have a deep enough pool that we can find three people such that any group of folks that are involved in a process probably won’t have to interact with them again during their time at Oberlin.
Lipman: That’s really interesting. Before we continue with [Meredith], I realize, Alexandra, you’re going to have to go. I just want to interrupt for a moment, because Alexandra has to leave. Alexandra, are there other issues, anything else that you would want to bring up and discuss? Any other points that you would like to make?
Brodsky: I have two thoughts. One, as Meredith was explaining the Oberlin process, I was thinking about the fact that we keep looking for national solutions that are going to fit every single campus. I don’t think it’s a problem that’s going to be solved in this way. Part of that is just because campuses have very different cultures and very different administrative setups. Also, it’s so much a question of defining what it means to be part of a community and what is acceptable behavior within the community. It’s really important to have the community deliberating as opposed to bringing in some consulting firm that knows how to bring everyone into compliance with Title IX.
My last thought is that, nationally, people only care about an issue for so long. I’m worried that the initial sensational panic is starting to die down. I’m worried that the conversation is going to die down with that. My hope is that we can realize that there is a lot of hard and unsexy work still to be done, both on individual campuses and on a national level. While the Department of Education has made some serious steps forward, there is a lot of the population that still has needs that are going unaddressed in federal policy.
I hope we can have this conversation in five years, even though we won’t have an Emma Sulkowicz then. [Sulkowicz is the Columbia student who carried her mattress around campus for months as a protest against the university’s handling of her rape complaint.] It’s a conversation that needs to be happening.
Lipman: Nancy, you wrote a wonderful piece where you mentioned some of the policies that Meredith has put in place that you thought were an improvement on policies generally.
Gertner: Does Oberlin have affirmative consent?
Raimondo: We do. We’re a full academic year into our new policy now. It is working helpfully to clarify what is sometimes called the gray area for adjudicators.
Lipman: What is it you did to clarify the gray area?
Raimondo: Spell out what consent looks like—that there has to be clear communication about each and every act, which lets adjudicators work through an investigation or court and try to figure out what happened.
Gertner: And it’s not within the Title IX Office or the office of a committee that the adjudication is done?
Raimondo: It’s through the Title IX Office—but I don’t have a decision-making role. My role in any adjudication is to be essentially an outside resource for all parties, ensuring that the process is fair and equitable. That’s the other thing that was critical in creating community buy-in to this process: at each and every phase we built in fail-safes so that we are making sure that bias is not influencing the process in either direction.
I come to this work as a feminist committed to survivor-centered processes. I think that one of the most important things we can do for survivors is have fair and equitable processes. If we don’t, then these processes are seen as invalid, and it reinforces all of the backlash that has characterized people as trying to get resources and attention for the harms that have been done to them.
Gertner: In your affirmative consent policy, affirmative consent can be oral, obviously?
Gertner: Does it have to be a “yes” or can it be signaling yes in some other way?
Raimondo: It can be body language.
Gertner: Let me step back as a former judge for a moment. You’re likely then to see, to some degree, the same kind of gray area as you saw before. He will say, She shook her head, or She put my hand on X—and you’ll have the same kind of issue. To some degree, I wonder whether affirmative consent is more about what it’s doing to the social relationships outside of the adjudication and less about what it’s doing to the adjudication, because it may well wind up looking very similar to what the no-affirmative-consent model looks like.
Raimondo: I certainly agree with your sense that it is critical to the education and culture-change work that we’re trying to do. You only have to be involved even slightly with one of these adjudications to know that there are horrible things that we need to stop from happening in the first place. We are going to need the affirmative-consent policy for when things do go wrong, but there’s too much that goes wrong right now in our institutions. Even the best-run process is going to be dramatically disruptive for the students who are participating in it.
That being said, we did not have a clear definition of consent in our prior policy. That was very hard for adjudication panels to work with. I’ll be interested to see how this [Oberlin’s] new policy goes. It was a bit of an experiment, and one of the things that those of us who are doing this work have to do is be really humble and hard on ourselves about how these processes are doing, and keep scrutinizing: is it working in the ways that we’re looking for?
In this instance, I think it helps our panels—particularly in instances where the only evidence is the word of the parties, which is many of these cases—to think about what preponderance might look like. That’s a very challenging question to try to get at. Somebody says, I had consent; the other party says, I didn’t consent. You have to try to talk through who did what and what was convincing at a particular moment.
In a recent sexual assault adjudication that we ran, it became about the logic of which story made sense to the parties about why events unfolded in the way that they did. I won’t be more specific out of respect for the people involved. In this case I do think the affirmative consent definition provided clarity, but that’s not to say it will in every case. I appreciate what you’re saying—that there are moments you’re still dealing with the uncertainty of different versions of events.
Lipman: Did the policy change the number of complaints that were made? What did you see in your first year?
Raimondo: We worked very hard to improve the climate for reporting. Certainly the new procedures were one piece of that. We also created a student advocate position—a staff member who is working specifically to provide advocacy—although we’re trying to navigate some of the federal guidelines for confidentiality that are incompatible with our state laws. That is a huge issue. I would love to see the folks in Washington take a look at it. They are creating some expectations or standards that may not be possible in all states.
We have a felony reporting law in Ohio, which means that we have to share information about potential felonies with police departments and can’t offer confidentiality to students—unless the person has legally privileged confidentiality, and that’s only therapists and clergy in our state. That’s a real challenge for some sites, like women’s centers, that have gotten a lot of attention as potential places for confidential reporting.
Lipman: Speaking of the confidentiality issue: there was a case at Yale where the Yale Daily News was able to get the files [on a complaint], including transcripts of the hearing. They didn’t name the students, but they were able to get all the information about the case. They did a terrific job in that they showed how difficult these cases are to adjudicate.
Yale’s position was that this article would have a freezing effect on others who might want to make a complaint—that they would be fearful that their confidentiality would be breached. Do you think that that is an issue to be concerned about?
Goldberg: I look at the issue with mixed feelings, because I was a board member for the Yale Daily News as an editor there. I’m also an activist on these issues, so I understand this from both perspectives. On the one hand, I understand from the journalistic perspective—and also from the advocate perspective—that it’s really important for information to be available to students who are raising important questions and having critical conversations on the subject. Students sometimes feel in the dark on these issues and want to understand how these cases actually work. What are the pieces of evidence that are used? Why in some cases is there no determination of culpability? In that regard these sorts of articles are incredibly helpful for empowering students with tools for conversations, and with information.
On the other hand, I do understand from conversations with administrators the fear that these sorts of articles may scare students off from reporting. I think that it has to be determined case by case. In some situations, when the complainant feels that it’s important for their case to be brought out for public discourse, I think the agency should ultimately be in the hands of the complainant. However, it’s important for journalists to exercise caution and for students to exercise caution and look at the implications for the reporting process and for other survivors on campus.
Gertner: The dilemma here is that if you had a process that was confidential, both sides want it confidential. He doesn’t want the accusation to come out, especially if he is ultimately exonerated. She doesn’t want it come out either. But then you have an adjudication in which the norms and the standards that underlay the outcome are not known. No one knows. To the extent that the adjudicative process exists to create standards and norms going forward, it won’t happen.
A confidential adjudicative process is a dead end. It’s like a confidential settlement: I have a discrimination case against you; we settle it; and nobody knows what happened. The notion that it has any precedent or impact going forward is gone.
Which is why I’ve begun to think that we have to figure out what prevention looks like going forward. We have to take the lessons learned from the adjudicative process to talk about hypotheticals and to identify what gave rise to the problem to begin with. We have to surface these patterns in some setting.
Lipman: As a parent, and as both an alum and a woman and also as a parent of a girl and a boy who have both been through college, I’m interested in the fairness aspect of this. It does seem the argument about this “preponderance of evidence” standard is that it’s stacked against men. I fully embrace the idea that we want to protect the victims and give them a fair and equitable shot, but as the mother of a young man I wonder whether, with the woman giving the affirmative consent, the man is somehow, by default, the aggressor.
Emma, you asked this question in [the survey for] this report you co-authored. What did you find?
Goldberg: It was pretty much even on both sides—the number of students who felt it was stacked against men and the number of students who felt it was stacked against women. There were students on both sides of the issue. When we coded the data and looked at how different variables correlated with one another, students who felt that the system was stacked against men also tended to exhibit in other responses on the survey just general misinformation or confusion about the system. In other words, those students who were complaining about bias exhibited towards men in the system also seemed to have areas where they didn’t really understand how the system worked.
Gertner: Were they primarily male or female?
Goldberg: We didn’t look at gender in the survey response.
Gertner: I think the preponderance issue standing alone would not be terrible if you didn’t have, again, all the other issues. When the person doing the adjudicating is a Title IX officer, preponderance means she’s going to err on the side of the woman and not the man, because you’re going to lose your funds if you rule in favor of the man—or at least there’s a risk of it. So this is a decision governed by risk assessment rather actual adjudication.
A university has to stand up to the women who lose in these proceedings and who then go to the New York Times or go to the Wall Street Journal complaining—after an appropriate process. Or they may say, the fact that I had to repeat my story more than once was blaming the victim. Well, it is blaming the victim perhaps—but it’s also the way in which we get at truth. That is part of the narrative of fairness in this country: you get at truth this way.
It’s not just the preponderance standard; it’s all of the accretions of value judgments that we make after the process results in a finding for the man—where somehow due process is seen as harming the woman. The preponderance standard alone, it seems to me, is not a problem if it’s at least accompanied by other observations.
For example: the notion that some women may not express their real feelings [in a sexual encounter] because they’re frozen with fright. Therefore, if they haven’t expressed their feelings, in a sort of non-affirmative consent setting, it doesn’t necessarily mean that they didn’t have [negative feelings]. That could be true. It also could be that they’re lying. It could be one or the other. You can’t have a rationale that only excuses the woman.
Raimondo: I agree with that. The way that I try to think about it is that it is my obligation as a campus officer on these issues to build confidence in the process—because when people don’t know if the process is fair, it’s going to be hard for anybody to think any outcome is good, no matter what it is.
I say that knowing that these are incredibly hard decisions for the adjudicators to make. They agonize about them, because these are all our students. It’s a terrible, terrible moment for them.
I’m looking for ways to be as transparent as possible about the process while keeping particular cases private. That’s the balance. Whether that’s developing training scenarios that we widely publicize that are based on real cases but have been appropriately changed to provide privacy; whether it’s trying to publicly run some of those processes with pretend scenarios so people can see how they actually work—there are a lot of creative ideas that we can experiment with as campuses, to try to help build a sense that the decisions will be fair. The truth is, in any given case, the people outside of the room will never know. We can’t know and that is appropriate.
Lipman: Are there ever cases that you elevate to law enforcement? Is there ever a situation where it should be elevated to law enforcement authorities?
Raimondo: Like I said, we have a reporting law in Ohio that means we have to report to local law enforcement. That’s an enormous barrier for some people in making the report. I actually have mixed feelings. I certainly have seen anecdotal evidence that there have been institutions that interfered with students’ rights to access law enforcement. That’s something to very concerned about. We should always support students in accessing those resources when they want them.
In our policy, if there was a serious case where someone was working with law enforcement, we’re prepared to work through our process in a way that supports and doesn’t get in the way of the resolution of that law enforcement department.
Goldberg: Yale doesn’t bring in law enforcement, although at any point in the process students have the option of going to the police department.
Gertner: They’re told that option, and they can use it?
Gertner: At the student’s own option?
Lipman: How do you measure the success of the university’s process? Should you want to see more complaints, because your people feel free to complain? Should you want to see fewer complaints, because the campus environment has improved?
Raimondo: I think it has to do with whether students feel safe. The numbers of complaints are not necessarily a measure of that. The number of complaints could be an indication of more sexual assault happening, or that the process is much more welcoming. I think that the goal here is to make the campus feel safe, which is why it should be a process that has to do with education and adjudication. It has to do with prevention, in some ways—focusing on what led to the ambiguity, what led to the problems at hand.
Goldberg: It all comes back to student and survivor feedback. There’s a lot of conversation about what should these sorts of policies and procedures look like, and often not enough conversation about who should be involved in formulating these policies. I was grateful to have the opportunity to sit down, along with other students, with members of the Title IX Steering Committee—the administrators who are actually designing these policies—to look at the polices over the course of this year and to identify areas for improvement. We presented them with a set of proposals and recommendations and then worked through them with the Title IX Steering Committee. We identified what would be the most feasible proposals and the proposals that were most needed for the student body.
It just comes back to having as many channels as possible for student involvement. That really does contribute to students feeling empowered and feeling a sense of safety and agency on campus.
Lipman: Great. Why don’t we open up to some questions here?
Audience member: I’m intensely interested in Judge Gertner’s point about prevention and about the potential for affirmative-consent standards to change the culture so that everyone takes responsibility for their sexual conduct and sexual decisions. If no means “maybe,” then you need to say “maybe.” If no means “yes, under these conditions” then you need to say, “yes, under these conditions.”
I wonder whether you think that the adjudication process itself has the potential to promote that kind of information and culture or change it. Obviously with a formal complaint, bottom line, there has to be a decision: yes this person violated policies or no they did not. I think there are cases where there may not be any violation, but both parties behaved in ways that leave a lot to be desired as human beings, as fellow students, as members of the community. Does the adjudication process itself have any role in trying to effect change there, even when there is no finding of a violation?
Gertner: I think that mostly the adjudication process has enabled women—mostly women—to know where to go. As I said before, the confidential adjudication process done by people who are not necessarily professionals is not likely to come up with a description of the kind of conduct that we’re talking about.
What is troubling to me about this debate is that so many of the problems are taking place because women feel so oppressed that they cannot consent willingly. Sexual violence is one thing, alcohol is one thing, but then there is the continuum from “I said yes and boy, this is cool” to “I said no and fought with all my heart.” In between is “I think I have to say yes, because otherwise I’ll be embarrassed.”
Affirmative consent doesn’t help with that—with “I think I have to say yes, because I won’t be popular.” All of that sense of sexual coercion that still exists, affirmative consent doesn’t address and really can’t address. It is societal. The notion that some of the misconduct that people are talking about is in that area is chilling to me. We have sexual freedom in the midst of profound inequality.
I want to talk about that inequality. What is it that enables women on the one hand to talk about sexual freedom—I can dress any way I want, I can have whatever drugs I want—but on the other hand to feel oppressed by the systems of power that make them feel they have to say yes?
Lipman: Is the answer cultural change?
Gertner: We need a cultural change. This is actually a long-time division in the feminist community: whether you think that the principal issue is violence against women—whether you think that that’s causal or whether that is a symptom. I was always of the group that said this was a symptom. The issue is much more profound and has to do with the continuation of inequality. In lots of ways, women don’t feel they have agency over their lives. That’s what we have to address. I believe that ultimately the misconduct issue would be—not totally, but to some degree—resolved if women felt free to say, “you’re adorable, but no.” Or “I’m outta here.” That’s the problem.
Raimondo: I really agree with that. We certainly know from the public health literature that any focus on individual behavior change that doesn’t look at structural inequalities just doesn’t work, whether you’re talking about sexual behavior or any other kind of behavior.
I’ve seen that most acutely—and it’s where my biggest challenges are right now—around the concept of intimate-partner violence. The debate around the Violence Against Women Act was a mess. It leaves us in a very unworkable place in terms of students’ sense of the conversations they want to have about intimate-partner violence. The difference between violence that creates a barrier to education and a bad breakup—that is a very difficult area to adjudicate right now.
Lipman: So, the violence can be emotional violence? Is that the idea?
Raimondo: That’s one of the questions. There were people who wanted the Violence Against Women Act to include that. It didn’t in its final regulations. But there are a lot of models of intimate-partner violence circulating in prevention-and-response communities that would certainly include a broader continuum of power relations than just physical violence. If you use that broader definition, what does it look like? How do you know where the boundaries are?
Gertner: Once you are talking about a broad range of power relations beyond just violence, force, or coercion, you are getting the university involved in issues that are embroiling the larger community. Then you are talking to students about what life is like. And what you can’t protect them from.
Goldberg: That conversation about intimate partner violence has gotten so much more robust on Yale’s campus in the past year. In a lot of ways, I think that’s productive and is shifting the models that students traditionally have in their heads of what sexual violence looks like. It’s interrupting that stereotype and showing the range of ways in which sexual violence plays out on a realistic level on campuses, among friends, among classmates, among groups of friends.
Lipman: That goes back to the earlier point about behavioral change on campus. Alexandra seemed to think that, since the beginning of her freshman year, which was 2008, she’s seen a change on campus. Do you think that is correct—that there’s behavioral change?
Goldberg: I think there is, to some degree. Because sexual violence has become a much larger part of campus conversation, it’s also infiltrating the culture and shaping the way people behave toward one another. I think that the activism regarding policies and procedures has very much gone hand in hand with a change in culture and a change in behavior.
Lipman: In a positive direction?
Goldberg: In a positive direction.
Audience member: You mentioned earlier, Emma, behavior at parties, and said that you haven’t seen behavior at parties change. Could you elaborate on that?
Goldberg: To clarify what I meant to say earlier: in looking at the rising number of incidents reported, I don’t think that can be entirely attributed to any change in behavior, because I don’t think that the change in the way people behave at parties and socially has changed radically. I think it’s shifting incrementally. I think that’s largely due to the activism that’s happening at the level of policy and procedure.
Lipman: Have we gotten beyond the hook-up culture, which was all over the media ten years ago? Are we still in the same environment?
Raimondo: Yes, absolutely. And it involves social media in complicated ways, so there’s a technological piece that’s very challenging and interesting in terms of where the institutions’ scope is—and even just their ability to control it. You don’t control Facebook. Some of the ways these behaviors bleed into electronic forms is really interesting.
What I see, and what I’ve been talking about with some of the institutions that are in the Great Lakes College Association—a group of liberal arts colleges, similar institutions to Oberlin—is that there’s a real disconnect between daytime culture and nighttime culture. During the day, students are thoughtful and progressive and embrace feminist ideas and care about equity and all of this. And then, after dark, something really different happens in social relations. I think it goes a little bit, Nancy, to your point about whether women are in a place to step up and claim agency. We all internalize the inequalities of our society in profound ways that we are often not even conscious of. I think that it’s just that disconnect. That’s the most challenging issue for me around culture change. In a daytime workshop, we’re all there, all together. We all think this is great. Does it translate into actual social interactions once it’s after dark?
Goldberg: I think that’s absolutely true. We had a pretty big scandal related to one of our fraternities on campus recently. One of their initiation rituals involved sexual harassment. I was shocked to see some people on campus be defensive of this fraternity. These are people who are perfectly comfortable spouting feminist theory and discussing these sorts of issues in the classroom. Yet, outside the domain of the classroom—once it involves social ties—their beliefs about all these things become much more hazy. It’s much easier to discuss on the theoretical level than when it actually plays out with your friends and your classmates. When it affects their social life, people get a little bit more uncomfortable standing by their values.
Gertner: Those issues will bleed into adjudication no matter what. So, maybe we say, she has to say yes. Then he’ll say she said yes: she brought the drugs, and she brought the cocaine, and she was the one who started touching him. You’re going to wind up with the same sort of ambiguous social norms, now being played out in terms of whether it was a yes or was it a no. It’s going to be the same thing. Which is why I keep on saying that the question is about the social relationships.
Lipman: Does the fraternity culture play a role in this? Yale in earlier days, when I was here, didn’t have a fraternity culture because the drinking age was 18. The college served you alcohol. Now you’ve got to go to private parties and the fraternities are a much greater part of the social life.
Gertner: When we talk about prevention we should look at what’s the locus of the problem. Are fraternities the problem? Is the drinking age the problem? How can the universities on one hand be hands-off with respect to drinking—and then basically collect the results in these kinds of situations? Is it the ethos of sports teams? Is that the problem? I think we have to look at these questions in advance, because the adjudicative process will always be inadequate to set social norms.
Lipman: Great point. Other questions?
Audience member: Do you have any concerns that this is the moment in which we’re all hearing about sexual misconduct on campuses and sexual misconduct policies—so what happens when this moment is over? The publicity that has surrounded this issue is bound to be affecting people’s behavior to some degree. What can the universities do to make sure that point of view continues once it’s no longer in the press?
Raimondo: It takes a few things. Partly, it’s people who are doing this work making sure that we are training all parts of the institution, including the senior staff, so that everybody thinks of this as part of their job. Presidents, VPs of finance, all of those folks who are typically at some remove from this, need to see this as critical: making these cultural changes happen in our institutions is critical to the success of our institutions.
We also need to get serious about the research to show what the impact on the learning environment is. There’s actually astonishingly little research on this question. Certainly, what does exist shows significant impact on GPA and increasingly significant impact on [students staying in college] to graduation. That’s our core business, right? That’s what we do. We wouldn’t shy away from any other issue related to academic success—and beyond academic success, the success of students in every domain of their education.
Part of it is making sure we don’t let that pressure up when the outside world moves on, as it will. Media scandals have life cycles, but it’s the core business we’re in as educators.
Gertner: But also, I want to think a little bit about the swing of this issue in public opinion. You don’t want to be in a situation where first the focus is on women, on women’s issues—and now all of a sudden there is pressure back from men who claim false accusations. This is the University of Virginia issue [the backlash after the discredited Rolling Stone report about a gang rape], which begins to tap into old attitudes about how “women always lie about this.” I want to be attentive to the swing, so we are not in a situation where public opinion is either extraordinarily anti-men or goes back to age-old attitudes about women. We should try to come up with something in between, which is why I think panels like this are a great thing.
What I saw at the American Law Institute were people trying to increase the numbers of sexual crimes—from real force to unwanted touching. To make that a criminal offense is extraordinarily misguided. To talk about the university is one thing, but to talk about prisons and sex-offender registries and the whole complex of punishment is incredibly misguided.
Gertner: One crime that was proposed, for example, was the crime of sexual touching, which could be a misdemeanor. You get convicted of unwanted touching, and you wind up on a sex-offender registry. You can’t climb into the criminal justice arena without first understanding the extraordinary cost that that has for the system, for prisons, for people’s futures. The university is a bubble, but at least it enables a range of responses that are not career-ending responses. It makes sense that some of the non-criminal sexual misconduct stuff should be in the university setting. I am concerned about the swing [toward criminalization]. I was astonished that anyone was even proposing this.
Lipman: There’s a 2011 Yale report that looked at sexual climate among undergraduates and graduate students. To your point, the undergrads talked about inappropriate touching and being forced into sexual relations when they were drunk; the graduate students talked about the effect on their professional lives. They talked actually much more about power and power imbalance. They also talked about the lack of women in positions of power. They talked much more about those sorts of issues, which I think is a whole other side of this debate.
Raimondo: That comes back to your earlier point: what is the work we’re doing here? If the work we’re doing here is around equity and about dismantling inequity, then, A, no single system is ever going to do that. Those are always multi-strategy movements. And B, the criminal justice system is not likely to be part of it in any significant way. I can’t think of any equity issue that has been addressed by criminalization.
Audience member: I have a question about research and reports. It seems that the numbers on the incidence of sexual misconduct on campuses are all over the map—from showing that one in five college women are assaulted to showing that for every 1,000 college women there might be 6.1 incidents of any kind of sexual misconduct. Is there any hope for improving those numbers? Do you have any thoughts about how that would be done?
Gertner: No. [Laughter]
Goldberg: The numbers game is so difficult because for all the sexual misconduct that gets reported on campuses, there’s so much more that goes unreported. It’s so difficult to capture in these sorts of surveys or reports. Even speaking with other undergraduates I hear about so many cases that go under the radar. In our survey we were able to capture responses from a number of students who spoke about experiences that they chose not to report, for a variety of reasons.
Improving these numbers is a lot about lowering the barriers to reporting as much as possible, so that our numbers allow us to accurately gauge what the rates of sexual misconduct are. Until we can accurately gauge that, it’s going to be very unclear whether we’re improving the culture and whether we’re improving our policies and our procedures. A focus on lowering the barriers to reporting and eliminating the social stigma against reporting—all of that is going to play a critically important role in getting a more accurate sense of what the numbers are.
Gertner: It’s a definitional issue as well. One institution asked how many women had been subject to sexual assault. The number was in the single digits. Then they asked how many had engaged in drunk sex, where both parties were drunk. It was like 40 percent. What was clear is that the women didn’t regard that as sexual misconduct.
Part of the issue here is whose definition are we using. Violence, predator, that’s one thing—but with everything short of that we’re not sure, and the statistics reflect that.
Raimondo: I believe in high-quality social science research. There are smart people working on these questions. We’re clearly headed towards required sexual-climate surveys. Our institutions are going to be collecting data. If anyone is going to collect data, why not universities—where people spend their careers figuring out how to research very difficult questions.
There are enormous challenges, even in anonymous surveys, with underreporting. The data about, for example, male survivors certainly suggests that there’s a disincentive to report having experienced some kind of sexual violence, even in an anonymous survey. How do you begin to unpack those questions? We ought to be able to take that on.
Lipman: Do you have a sense of your sexual climate at Oberlin versus that of your peer institutions? Is there way for colleges to assess that right now?
Raimondo: Down the road, whether institutions are going to share data from climate surveys is a really interesting question. It’s one that our general counsels, I think, are extremely nervous about. There are some pretty challenging issues around reputation.
It’s a bit like the OCR list, right? [In May 2014 the Office for Civil Rights of the US Department of Education published, and began regularly updating, its list of campuses under investigation for possible Title IX violations.] There was a point where being on the OCR Title IX investigation list was horrible—until the list got so big that the stigma has decreased. I think we are looking for those sweet spots: how do you get in front of this issue in a way that makes you a leader, but navigates some of the problematic context that can make it hard for institutions to be leaders. Those risk management issues are real. That’s where communications offices and others are critical players in this conversation, so that institutions don’t fall back on that defensive it’s-better-not-to-know posture, and instead figure out ways to collaborate. The more we do it together, the more we are embracing shared risks, and that’s probably the way to go.
Goldberg: There are so many players involved in this, not just educators and social scientists, but the students themselves being educated and recognizing when instances of sexual misconduct are occurring. Also, I think that sometimes the role of the media is underplayed. Reporting on these issues that is not responsible has a massive effect on whether students feel comfortable coming forward and reporting and on how this data is collected and what stigma universities and administrators face. There are so many players who have to recognize their responsibility in this long-term game of more-effective data collection.
Audience member: You briefly mentioned the male survivors of sexual assaults. Most of the data overwhelmingly focuses on women, but what data is out there about men? Is that something we should be concerned about?
Raimondo: There is some data. I want to say about 9 percent of assaults in the last five to ten years, some period like that, were experienced by men. It is enormously underreported. There is suggestive data that’s not particular to college campuses that suggest that LGBT people are more vulnerable to assault. Certainly, transgender women in particular are more vulnerable to assault. I think there is some data to suggest that African American women are more vulnerable to assault, but we just don’t have enough to generalize.
What I find useful at this point is to let those studies be local studies and not try to over-generalize from them. That’s the problem with the “one in five” number. People took it beyond what the scope of the study was. [The 2007 study, by Christopher P. Krebs and others, collected data from two large public universities.] If we actually talk about what the study was, what it can claim, what can be generalized and what can’t, that’s better data.
But even the lowest numbers suggest there’s too much violence. As long as we can begin from an understanding that there’s too much violence, then I think it opens the possibility to try to talk about differential vulnerability to violence, which is an important conversation. We’ve talked a lot about gender today, but this issue is riven by all kinds of axes of inequality. Race, citizenship, income—all of those questions play out in this. A really effective response is going to have to be nuanced around all of that complexity.
Lipman: You have all been terrific. I’m going to give you one last chance to go around. If there was one point that you want to make sure that we get in here, one priority issue, now is the time if you each want to.
Gertner: Given the ambiguities of definition and culture and race and inequality, my focus has been on the process. That may be a great judicial copout, but my focus has been on the process because I am concerned about false accusations—as a feminist and as a former judge and as a mother of sons.
But by the same token, I’m concerned about women not being treated seriously on this issue up until now. The only way to deal with a situation in which there are harms on both sides is to look carefully at the process. That goes to adjudication, but as I’ve said all along, I don’t think that adjudication is where we’re going to address this. I think we have to deal with the broader social context in which this is taking place and have to talk about prevention. Maybe we go back to parietals. There was something titillating about keeping your door shut. [Laughter.]
Goldberg: I think so much of this comes down to power, to questions of power. Student and survivor involvement in policy making is critical, both at the university level and at the national level, for developing strong policies and procedures that are in touch with the current social and cultural norms. It’s also critical just for empowering students and creating a culture that demonstrates that students really do have agency in their futures.
Raimondo: I’m struck by how similar so many of the issues that are happening on campuses are to the ones that existed when I was a college student, almost 25 years ago now. What strikes me as the extraordinarily exciting thing about this moment is the national student movement that has changed the conversation. I believe that students have to lead the way to student culture change and that we need to think about how those of us in institutional positions can support and enable that work to take place.
Gertner: Let me say one more thing. In talking to women law students who talk about sexual harassment on the job or who talk about the informal ways that they’re excluded on the job, I say: collect your stories. Come up with a petition. Take to the streets. Do this as a collectivity. Do it as a collective matter.
They all say, “No, we’re frightened to do it that way. We will go along to get along.”
That brings up the economic issues of the workplace. We’ve had a mobilization on campuses regarding sexual assault. People are taking to the streets. People are taking to the media. We need to have mobilization around both issues. This generation of women cannot go on believing that these problems are individual problems. These are not individual problems. We should have the same social activism for wage inequalities, sexual harassment in the workplace, and the kind of things that [Joanne is] writing about.