New Policy Addresses Consent

Last May, aiming to craft a policy that better reflected sexual relationships at Kenyon, Campus Senate approved a revised version of the College’s sexual misconduct policy. Drafted over the course of a year, the approved version defines the consent requirement as, “clear, voluntary and knowing” and now includes both verbal and non-verbal consent.

The policy also features revisions in compliance with a memo distributed by a division of the U.S. Office of Civil Rights. These revisions bring the College into compliance with new federal regulations regarding mediation of sexual misconduct.

A review board comprised of students — many of whom were Sexual Misconduct Advisors (SMAs) — faculty and staff members presented the revised policy after hosting two all-campus forums last November and reviewing the policies of Kenyon’s peer institutions.

Kenyon’s old policy, which was adopted in 2000 and has since been revisited every four academic years, required verbal consent for every action in a sexual encounter, but the review board concluded the gap between policy and practice was unrealistically wide.

“It wasn’t practical; it wasn’t working. No one was really asking,” said Emily Estus ’14. Estus worked on the review board and serves as both a Beer and Sex advisor and SMA.

“Students said the verbal consent policy was just kind of ridiculous ... because people weren’t upholding it,” said Samantha Hughes, director of the Office of Student Rights and Responsibilities. “What they wanted and desired from the revision of the policy was something that addressed drunk sex because they said that’s what’s happening. Hooking up and interacting with another person or persons is the reality of Kenyon.”

Nonetheless, while the revised policy may better take into account the realities of drunk sex, non-verbal consent is harder to define, according to Estus. “For a long time I was really worried [because] non-verbal communication — it’s so much grayer than just normal, ‘Can I do this? Yes.’ Especially if both parties are drunk, which is usually the case at Kenyon,” she said. “But with the realities of Kenyon in mind this is perhaps a better policy.”

Dylan Kaye ’15, also a Beer and Sex advisor and SMA, agrees. “This non-verbal [consent] makes things tricky and makes both parties have more responsibility,” he said. “For situations when someone is feeling very uncomfortable and can’t say no, their body language can be very important.”

But Kaye expressed concern. “I hope it works,” he said. “I guess my concerns are that it’s so hard to read body language. Like if you winked at someone, what that means to a person. It could be funny, it could be anything. And there leaves room for a lot of misinterpretations and assumptions.”

Hughes, though, seems confident in the Student Conduct Review Board’s ability to navigate the gray areas. “I don’t know if that will make it harder. It’s just a more realistic picture of what is going on here,” she said. “Instead of just focusing on words, we get to focus on everything which I think the Board has typically always taken into consideration, but now it’s definitely a part.”

On a national level, Kenyon’s revised policy is cutting-edge, according to Hughes. Following the federally mandated memo, known as a “Dear Colleague” letter, the Association of Title IX Administrators issued a model policy to serve as a guideline for any college’s sexual misconduct policy. Kenyon adopted a near-replica of the model policy, becoming a forerunner in what a college’s sexual misconduct policy should look like under Title IX.

Like Kenyon’s revised policy, the model defines consent as clear, knowing and voluntary, and although it encourages verbal consent, it also confirms non-verbal consent as appropriate.

In addition to changes regarding consent, the revised policy also addresses the appropriateness of mediation in sexual misconduct hearings, and the consequences of such misconduct.

Kenyon’s past policy permitted mediation of misconduct complaints across the four recognized categories — sexual harassment, assault, endangering someone’s health and inappropriate or unwanted touching. Following the memo, however, the College had to change its policy on mediation in compliance with federal mandate.

Now, mediation is only appropriate in instances of sexual harassment.  

“The ‘Dear Colleague’ letter talks about the power of mediation as sort of that notion of restorative justice. Basically having the two people who have been harmed [acknowledge] there was a wrong, but also [acknowledge] there’s growth,” Hughes said. “But, sexual assault is so heinous that to try and say mediation is appropriate, [the OCR] thinks that’s just not [possible].”

Now, those involved in a complaint no longer speak directly to each other. Instead, they issue and answer questions through an advisor.

As for consequences, the revised policy has more room for interpretation, according to Estus. “You want to be able to find some way to encourage people to report what’s happening to them, and so we took a hard look at the consequences of each individual sexual misconduct,” she said.