Between the 2011-12 and 2012-13 academic years, the number of sexual harassment or assault reports at the College of William and Mary rose from 17 to 30, according to Title IX data included in the William and Mary Task Force on the Prevention of Sexual Assault and Harassment report released in September. In the 2013-2014 school year, the number of reports filed dropped to 25.
Of these reported incidents — 72 total across the three academic years — 24 were investigated. Two cases were adjudicated with a student found not responsible, while 20 were adjudicated and resulted in a policy violation for a student.
According to the report, the number of adjudications per year is rising. It states that the College averaged one adjudication related to Title IX per year in a recent five-year span, while in the 2013-14 school year, this number increased to seven. In 2014-15, the College was set to adjudicate 12 cases.
Complete Title IX data from the 2014-15 school year has not yet been released.
“[The data] has been delayed by our Office’s focus on finalizing and implementing the new procedure, creating the website, and responding to reports,” Title IX Chief Compliance Officer Kiersten Boyce said in an email. “We are working to get the data online, ideally in an improved format (more user-friendly), by the end of the month.”
While the task force’s campus climate subcommittee focused primarily on data collection and analysis, the investigation and adjudication subcommittee was guided more by details of past cases than overall Title IX data. However, given the role of investigation and adjudication in the data, Title IX was still an aspect of the subcommittee’s discussion.
The four-person group was made up of subcommittee chair and Associate Dean of Students Dave Gilbert, professor Carolyn Ward, Mallory Tucker ’15 and Boyce.
“The subcommittee’s charge from [President Taylor Reveley] was to examine and make recommendations regarding current university practices and procedures for investigation and adjudicating allegations of sexual misconduct,” Gilbert said in an email. “The subcommittee had over 20 recommendations, ranging from clarifying policy definitions to retaining a trained appellate advisor for the Provost’s Office.”
One of the subcommittee’s recommendations was to determine the correct model for resolution of student sexual misconduct incidents. At the time of the task force’s creation, the College followed a hybrid model where trained investigators researched cases and adjudication took the form of a panel hearing.
The committee presented two alternative models: a civil rights model, where investigators decide which violations occurred after concluding their investigation instead of relying on a hearing, or a hearing model, where the hearing is the only way to gather facts and determine violations.
In choosing a model, Ward said it is necessary to consider both the accuracy of outcomes and the harshness of potential sanctions.
“Where the potential sanctions for a conduct-code violation are light — not involving permanent marks on a student’s record or removal of the student from the school — then the need for procedural protections is not as great as when harsher sanctions are involved,” Ward said in an email. “And, when the harshest sanctions available to colleges — sanctions such as expulsion or permanent markings on a record or a transcript — the need for procedural protections that ensure accurate outcomes is at its most intense.”
Following the release of the subcommittee’s recommendations, as well as the rest of the task force report, the College decided to update its model to an Interim Sexual Harassment and Misconduct Procedure starting in the fall 2015 semester.
“The prior model involved an investigation followed by either administrative resolution through the Student Conduct Office or, more commonly, a hearing before a panel comprised of two administrators and one student,” Gilbert said in an email. “Under the new process, the investigation is documented in a report that is shared with the parties for review and response before finalization. The investigators then may conduct further investigation or make additions to the report. The final report is submitted to the dean of students for a determination as to whether a policy violation occurred. As with the prior model, each party may appeal to the Provost.”
Another subcommittee recommendation discussed the College’s definitions of consent and incapacitation.
Ward said that many universities are moving toward an “affirmative consent” standard that questions if the parties in a sexual encounter have voluntarily and affirmatively agreed to engage in sexual activity and whether such agreement continued throughout the sexual encounter.
“William and Mary’s standard of sexual consent — which states, for example, that consent ‘[i]s not merely the absence of a verbally stated ‘no.’ … [i]s never final or irrevocable. … [i]s time-limited and situation-specific, … [and] [c]an only be given by someone who is free from verbal or physical coercion, intimidation, threat, or force’ — captures the main elements in most of these standards,” Ward said in an email.
According to Ward, the goal of the affirmative consent standard is to create mutual respect and a lack of coercion, but critics say that the lack of language clarity in consent standards could lead to questions in the investigation and disciplinary processes.
As for the definition of incapacitation, Ward said that the College’s policy adheres to three core elements: responsibility for sexual contact will be judged from the viewpoint of a sober and reasonable person in the same situation, the responding party’s own intoxication is not grounds for sexual misconduct, and person who is incapacitated, especially due to intoxication, cannot consent to sexual activity.
The subcommittee report listed specific suggested revisions to the current policy’s definitions, which were then modified in the Interim Policy on Sexual Harassment and Misconduct, Dating and Domestic Violence, and Stalking.
“The goal was to provide greater clarity rather than to substantively change what constituted consent or incapacitation,” Gilbert said in an email.
A third key recommendation discussed minimum sanctions for non-consensual sexual intercourse. In February 2015, the subcommittee noted the minimum sanction of one semester of suspension was lower than many other universities and raised it to one full year. In the June 2015 report, the committee suggested keeping the two semester minimum suspension given the serious nature of the act.
Gilbert said in an email that students who receive the minimum suspension are atypical, with most suspensions lasting for at least the duration of the reporting party’s remaining time at the college, usually more than a year.
The report itself also reinforces the idea that minimum suspensions should be stressed less than more severe punishments: “The university must emphasize that in some cases, dismissal would be appropriate — in cases with evidence of force, use of date rape drugs, prior history of violence, predatory behavior, etc.”
Since the release of the task force report, the College has published an Interim Policy and Procedure, revised in accordance with the subcommittee’s recommendations. It has also hired a new investigator for the Office of Compliance and Equity, as well as an advisor to assist the provost with his review and response to appeals.