Swarthmore’s New Sexual Assault Policy Not Without Flaws

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Analysis Violence

Swarthmore’s New Sexual Assault Policy Not Without Flaws

Annamarya Scaccia

Three months have passed since Swarthmore College introduced a centralized sexual assault and harassment reporting system, meant to rectify the many issues exposed in two federal complaints alleging the school has mishandled sexual assault cases on campus. But not everyone is happy with the new system.

In August, reporter Annamarya Scaccia took an in-depth look at how Swarthmore College and other U.S. higher education institutions have been mishandling sexual assault cases. This is a follow-up to that piece.

Three months have passed since Swarthmore College introduced its centralized reporting system as part of its new Interim Sexual Assault and Harassment Policy—a carefully manicured reworking of campus procedures currently under investigation by the Department of Education’s Office of Civil Rights (OCR). Released with its 2013-14 Student Handbook, Swarthmore’s updated policy aims to rectify the many issues exposed in two federal complaints alleging the school has mishandled sexual assault cases on campus.

With this provisional doctrine, Swarthmore has implemented a sweep of administrative changes informed heavily by a third-party consultant report including a restructured Title IX team, extended Title IX and sexual misconduct training, and refined sexual misconduct definitions. These adaptations, claims the liberal arts institution, are Swarthmore’s attempt to “take clear and definitive steps” addressing the concerns raised last semester by members of its student body.

But for one freshman, a revamped process meant to ensure students are safe on campus and receiving the professional help they need has become an officious charge in order to compensate for past mistakes.

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Like her fellow first-year peers, Anna Livia Chen was required in late August to attend the student-led Acquaintance Sexual Assault Prevention (ASAP) workshop as part of Swarthmore’s orientation for incoming students. Implemented in the mid-1980s, the ASAP workshop serves as a comprehensive overview of sexual assault issues and prevention. This year’s seminar, updated per the liberal arts school’s new policy, focused on consent and its real-life applications.

But Chen opted not to participate. As the Mountain View, California, native explained to her residential assistant, she wasn’t emotionally ready to tackle the subject of sexual assault given her own experience as a childhood sexual abuse survivor. Hearing survivor testimonials—a standard part of the workshop—would be triggering for her.

Neither Chen nor her RA thought her case would need to be shared with Swarthmore’s interim Title IX coordinator, Patricia Flaherty Fischette. Per the new system, Fischette is supposed to receive all information pertaining to any sexual assault and harassment incidents learned of by college employees or any of the six student groups identified as required reporters, such as RAs or ASAP facilitators. (The college’s Worth Health Center, Counseling and Psychological Services, and religious advisers are considered confidential resources that do not have to report.) According to Jenni Lu, news editor of Swarthmore’s the Daily Gazette, by ordering reporters to share cases with the Title IX office, the southeastern Pennsylvania institution is attempting to direct survivors to sources it deems professionally trained so students feel they’re receiving “the adequate help that they need.”

“They’re afraid that if all survivors are doing is approaching their friends, their peers, people who necessarily haven’t gone through extensive training to deal with this, they may not actually be getting the help that they need,” Lu told Rewire. “They really are trying to keep victims’ safety in mind.”

Nancy Nicely, Swarthmore’s secretary of college, echoed as much in an email statement to Rewire: “Our goal is to not only meet the letter and spirit of the law, but to ensure that our policies assure the safety of our students, provide meaningful support to victim/survivors, and enable us to respond with the highest levels of fairness, compassion, and respect for privacy.”

In Chen’s case, the sexual abuse she experienced happened when she was a junior high school student in California, and wouldn’t fall under the tenets of either Title IX of the Education Amendments of 1972, which prohibits sex and gender-based discrimination in federally funded schools, or the Clery Act, which requires the collection and disclosure of information about crime on and near campuses. And, to this extent, the lawyer who helped Swarthmore draft its new sexual misconduct policy, Gina Maisto Smith of Pepper Hamilton LLP, told the Philadelphia Inquirer in August in regards to an unrelated case that schools are required by law to investigate past events of sexual assault and harassment on campus if “that threat becomes current”—which Chen’s was not.

But the ASAP facilitator who contacted Chen about organizing a private ASAP session was concerned. Since Chen was a minor when assaulted and a minor at the time she told her RA (she was 17), the facilitator felt Fischette should know. Complying, her RA gave Fischette the “most pertinent details,” stressing that Chen “was no longer in any danger whatsoever” and had “all the support” she needed from her family, friends, and therapist back home.

Fischette should have been the end of the line—or so Chen was told. But upon receiving Fischette’s report of the case, Swarthmore’s general counsel disagreed. The firm, which is now informed of all sexual misconduct cases sent to the Title IX coordinator, according to Chen, determined Chen’s minor status was cause enough for Swarthmore’s Department of Public Safety to report the abuse to the Pennsylvania Department of Public Welfare’s ChildLine and Abuse Registry. (Swarthmore’s interim policy states any college employee who suspects abuse of a child they’ve interacted with during their employment must make a report to Public Safety, but doesn’t offer specific guidance.) It was a decision that would drag the still unresolved case out over a month and cause Chen to start unraveling at the seams. (Neither Fischette nor Nicely responded to Rewire’s phone calls seeking verification.)

“So much of my time was being drained by having meetings with various administrators and resources, not to mention the emotional energy it took. I had no time for self-care, which is something that I desperately needed with everything that was going on,” Chen said. “I am still frustrated that this process got to a point where it overtook my life in the way that it did.”

Much like she did with Swarthmore’s administrators, Chen stressed to Child and Youth Services (CYS) of Delaware County, which received Public Safety’s report, that she didn’t want her case pursued, and wouldn’t go into any more detail. However, according to Chen, on October 10—the day of her 18th birthday—CYS informed her it was legally required to notify the police with the information they had on file, including Chen’s California address. (Chen said she was surprised to learn that CYS had her home address, as she explicitly told Public Safety that it wasn’t to be disclosed in its report.)

“One of the most upsetting things about my experiences is that nothing ever went as we were told it would. The amount of information that I shared with my RA or the actions that we took in cooperating with the reporting policy probably would have been very different if we had known that it would ultimately result in my case being reported to the Child Sexual Abuse Hotline,” Chen said. “All of this goes to show that the biggest problem with the required reporting policy is the lack of transparency. People are not being informed about what will happen once they adhere to the new policy and the chain of events is triggered.”

“The more the college becomes OK with saying they aren’t perfect, the less students will be upset about said imperfections. Humility is a great quality,” she added.

Chen said she still hasn’t heard from law enforcement. As for administrators, Chen is working on scheduling a meeting with the players involved to discuss her concerns as well as policy and practice changes to help avoid a case like hers from occurring again. “The story isn’t fully closed, but the official case according to the school is closed,” she told Rewire.

If you ask Eddie Zhang, a recent Swarthmore alumni and a support person for many survivors involved with the federal Title IX complaint lodged in May against the institution, Chen’s situation is illustrative of a “very amplified [form] of paternalism” on the administration’s part. This direct pipeline between survivor and administrator, he said, removes responsibility from the student through the notion that authority figures are better equipped to address sexual assault. This, in turn, can prevent immediate observers from helping victims. And it also assumes that those identified as authority figures and trained resources are “doing their job,” he said.

“To say that somebody who hears of an assault should then report because then the victim or survivor can receive ‘the help they need’ would be farcical if it weren’t tragic,” Zhang told Rewire. “I think there’s a lot of merit to lateralizing support systems, whereby more students have some degree of training and responsibility to assist immediately, rather than having as the only option deference to the paternalistic implementation of ‘support’ that the college has to offer.”

“The belief that sexual violation is something that only [professionals] can handle is a structural reinforcement of the social isolation of survivors,” he added.

This perceived interventionism is also seemingly coupled with systematic complications. As the interim reporting policy stands, it doesn’t allow much room for discretion, Lu said, as required reporters are obliged to reveal “essentially everything that they know,” including the student’s name. It can also place a heavy burden on the student, she said, by having them determine what cases are “relevant, ongoing, or potentially harmful to the school environment.”

“They’re putting a lot of trust in those students and I think that they’re hoping that, because they’re putting trust in the students, students will reciprocate that and put trust in the system,” Lu told Rewire. “It’s a hard thing to ask of the students because, in the past, that’s been the big issue—students haven’t trusted the school, but [the administration] has been working really hard on centering this view of the reporting system around [the Title IX coordinator].”

That fragile trust, though, wavered earlier in late August when the school removed student Mia Ferguson—the driving force behind the complaint against the institution—from her RA role for withholding a sexual assault survivor’s name she learned about prior to taking up her post. From the college’s perspective, as an RA, Ferguson was mandated to give this information as it was pertinent to an ongoing investigation. But the 19-year-old junior didn’t see it that way—she wouldn’t break the confidence of the person who came forward before she took the position. It’s an incident that created confusion on campus as to what exactly constituted retroactive reporting, Lu said.

The retroactive reporting clause, however, was clarified in a campus-wide email distributed by Fischette on September 2, according to Daily Gazette article written by Lu. In particular, any required reporter must share all information and names, if known, regarding incidents of sexual misconduct, no matter when they’ve learned about the assault. And, said Lu, the college has made clear that “basically 100 percent of the time” the survivor’s name is an important detail to be revealed.

Chen’s experience aside, Lu said it’s too early to tell how the new reporting policy is shaping up because “it’s not something that’s openly manifested out in public.” Lu did notice, however, a recent uptick in reports of sexual misconduct that had occurred in years past, all of which are posted to The Daily Gazette’s news blotter. While she said the student paper is not “privy” to how or why those reports are filed, she theorizes it may be a mix of retroactive reports shared by required reporters and students coming forward of their own volition.

“[The administration] has really been trying to show students that they want to start with a new sense of openness that has been lacking in the past,” Lu said. “It’s hard to say that it’ll be successful just because people have naturally been really mistrusting in the past—and for good reason. It will take a while.”