“Missing the Mark”: Student Responds to Title IX Policy
This post was guest-authored by a Kenyon student who has asked to remain anonymous. Content warning: This post discusses rape and sexual assault.
In regards to the recent, popularized case of sexual misconduct: I believe the perpetrator was guilty and does not deserve to be on campus, but I think our response to this issue is missing the mark.
What went wrong in this case has been mirrored in far too many cases that use Title IX to handle sexual assault. The injustice lies rooted in something far more complicated, and far more systemic, than institutional negligence. It is deeper than Kenyon trying to protect rapists in order to make our crime statistics lower and project an image of idyllic safety on our campus. It is more complicated than Kenyon mishandling sexual assault cases. To assume the fault is entirely with Kenyon does not allow us to engage with the underlying issues within current federal policy that permits perpetrators to go free, only causing more danger on our campus and more pain within our community.
The problem, in this case, is less about Kenyon’s implementation of Title IX and more based in the Federal Title IX legislation itself.
First of all, Title IX, as a piece of anti discrimination legislation, cannot take into account an individual’s sexual orientation. But I think the biggest issue in this case is that Title IX is not good at dealing with incidents in which alcohol is involved. It has no realistic wording on how to evaluate consent.
The original text of Title IX states as follows: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX lays no groundwork for what constitutes consent in a sexual encounter, and it includes no specific wording that would help institutions deal with the extreme ambiguity that surrounds many of the cases that are tried through campus processes. This includes, particularly, incidents where alcohol is involved. (The Bureau of Justice Statistics released a campus climate survey in 2016 that found that alcohol was involved in over half, 63%, of all incidents of sexual assault on college campuses.)
Title IX itself does not place the burden of consent on one party or another. This means that, in an instance where one or both people are intoxicated, the ambiguity of the legislation’s text makes it extremely difficult to find one person responsible for committing an act of misconduct.
Unfortunately, Kenyon does not have any influence over the wording of Title IX. Changes to the language used in Title IX would set clearer standards for administrations to handle sexual misconduct cases, and thus create fewer opportunities for institutional negligence. Here are two concrete changes that could be made to Title IX legislation that would prevent perpetrators of sexual assault from slipping through the cracks:
First, Title IX needs to place the burden of consent on the initiating party. This means that if one person is initiating sex, it is their legal obligation to make sure their partner is clearly, knowingly, and voluntarily consenting. The gender, sexual orientation or intoxication level of this initiating party does not matter; if they are initiating, it is their obligation to make sure their partner is okay. This change would mean perpetrators would not be given passes because they were drunk, or because they were in a relationship with the other person, or anything other outlying factor. If this was an established rule under Title IX, incidents of assault that are labelled as “grey” would become much simpler. If the initiating party did not obtain clear, knowing, and voluntary consent, they would be found responsible.
The second measure would be for a clear statute of affirmative consent. In other words, “yes means yes” would become legally binding. Kenyon’s own policy on assault is that it must be clear, knowing, and voluntary. If Title IX and Kenyon both adopted a stance that only a clear, verbal, yes constitutes a yes, it would eliminate loopholes that so often let perpetrators slip away.
It is hard to legislate the grey area that comes with alcohol and sexual assault. I believe that the victim in this popularized case was left unfulfilled not simply because of the failure and ambivalence of Kenyon, but because the Title IX legislation is faulty at a federal level.
Yes, we are angry at the injustices experienced by survivors everywhere. It is easy to direct that anger at Kenyon. But we have to remember that Kenyon is operating within the strict confines of federal-level legislation, and it is exactly that federal legislation which needs to change.
I appreciate the solidarity for survivors shown by the sit in, but sitting in to put pressure on Kenyon’s administration to change is missing the mark and not addressing the real injustices faced by victims on Kenyon’s campus and across the nation.
Yes, it’s scary, but we have to direct our anger and energy towards the real problem.
To react with anger and frustration when confronted with an assault narrative, like the one currently spreading around campus, is a normal reaction to something horribly extraordinary. It should make us angry, that a member of our Kenyon community was hurt in this way. Not only does hearing about an incident like this force us to confront someone else’s private and intimate pain, but it challenges our conception and image of Kenyon, a place that many of us love and call home. Anger can be constructive, but in order to truly make a change we need to channel those feelings towards understanding the issue as a whole and dedicating our time and attention to it, even after the campus stops buzzing about this particular case.