To the Editor:
The April 28 column by Emily Stephens '97 ("Administration Discouraged COS Case") and the related article about alleged mishandling of her sexual abuse complaint raised some important questions about the appropriateness of "mediation" in sexual abuse cases and its relationship to the College's disciplinary system. (Keep in mind that Dartmouth's sexual abuse policy refers to a broader spectrum of behavior than what most people would define as assault or rape: it also pertains to threatening conduct of a sexual nature and to touching an intimate part of someone's body without consent).
Members of the Dartmouth community should know that one of the central features of the College's approach to the very real and substantial problem of sexual abuse among undergraduates is to provide students who believe they have been the recipients of such abuse with information about resources for assistance, information about their options and as much discretion to make their own choices as possible. Some students choose to tell no one; some choose to confide in a friend, parents, a counselor, a trained peer advisor or the College's coordinator of programs to address sexual assault; some choose to go to the police; some choose to bring the matter to the attention of the College's disciplinary system; and some choose to meet with the other person involved and attempt some resolution of the matter with the help of a mediator who is not affiliated with the College's judicial process.
Our administrative hearing process assumes, as a matter of fundamental fairness, that the accused student is not in violation of the relevant standard of conduct unless and until there is a preponderance of evidence, in the course of a hearing, that a violation took place. The decision about "charging" an undergraduate student with an alleged violation of Dartmouth's Community Standards of Conduct and initiating the hearing process rests with the Dean of the College Office, a decision informed in large part by the content of the complaint (is the behavior in question addressed by the standards of conduct?), the evidence available, and the willingness of the complaining student to participate in a hearing.
Most frequently in a sexual abuse case the student bringing the complaint is not simply the most important witness but also the only direct witness to what occurred. The College's ability to hold a hearing at all depends largely on the willingness of that individual to take part in the hearing or at least to provide a written statement, and the College has neither the desire nor the ability to compel students who bring complaints forward to appear as witnesses in a hearing against their will.
My colleagues and I who share responsibility for the disciplinary system firmly believe that individuals who demonstrably violate the College's standards of conduct concerning sexual abuse should be held accountable for their behavior and should receive appropriate disciplinary sanctions, including suspension and permanent separation from the College. Nonetheless, some of the individuals who talk with us about complaints regarding alleged sexual abuse by others are either ambivalent about participating in a hearing or flatly refuse.
The reasons can be as various as the individuals involved: sometimes the individual simply does not want to respond to questions in a hearing about the incident. Sometimes the individual does not want the potential outcome to be a disciplinary sanction for the person accused. Sometimes the individual does not want to participate in a process with an uncertain outcome, to be determined by a vote of the Committee on Standards. In these and other kinds of instances, we may well ask students which of the alternative options they would like to pursue and what result or outcome they might desire. Sometimes the responses include the desire simply to say to the other person that what happened was wrong, to explain the personal effects of the incident, to demand an apology or to insist that the other individual participate in counseling.
If an individual expresses a desire for outcomes of this sort via a non-judicial process, a dean or other advisor might well present mediation as an option and refer a student to some of the excellent College and community resources. There are many instances, such as a forcible rape, in which I would be reluctant to propose mediation as an option, but my colleagues and I have no desire or ability to prevent students from participating in mediation. By the same token, there are other instances in which I would work vigorously to help interested students arrange a mediation, but neither do I have the ability to compel students to participate in such a process, to set the conditions under which it takes place or to determine the outcome. Those are issues that students participating in mediation would ultimately negotiate and decide for themselves.
What is the relationship, then, between mediation in general and the College's disciplinary process? In one sense, there is no relationship: the disciplinary system has no formal mediation "track," it can't mandate or prohibit mediation and it can operate independently of whether or not students elect to participate in mediation. (It's worth noting that most opportunities for mediation through a resource such as the Dartmouth College Mediation Center would concern disputes unrelated to Dartmouth regulations).
In another sense, however, there can be an appropriate informal relationship: for example, roommates involved in a dispute concerning reported theft or damage to one another's personal property may elect to participate in mediation prior to a conduct hearing with the reasonable expectation that the outcome of the hearing may be influenced by whatever responsible steps they have taken to resolve the matter between themselves.
In a case involving a possible complaint of sexual abuse, the complaining student may propose mediation to the accused student as an alternative to the submission of a formal complaint to the College. Alternatively, a student who has submitted a complaint may offer to withdraw it, depending on her satisfaction with the agreement reached with the accused student during the course of mediation.
The students themselves, perhaps with the assistance of the mediator, would determine the conditions under which they would mutually agree to participate in mediation. The students may decide to negotiate an agreement to these and other kinds of conditions only if the Dean's Office assures them that a conduct case will be dropped and not reopened if the complaining student, following a mediated agreement, elects to withdraw the complaint. And independently of any agreement between the students, the Dean's Office may inform them about a determination regarding whether or when a particular complaint will go to a hearing or not, especially in circumstances where a student bringing a complaint has gone back and forth about his or her willingness to participate in the hearing.
The Dean of the College Office cannot enforce compliance with a mediated agreement, and it cannot alter the fact that participating students sometimes change their minds about the suitability of the agreements they make with one another. What those of us affiliated with the disciplinary process can do, however, is keep the promises we make, regardless of how they might later be misconstrued or publicly misrepresented. We can also assure students of our intention to do our very best consistently to implement Dartmouth's Community Standards of Conduct, to implement the disciplinary procedures as described in the student handbook, to treat both students involved in a sexual abuse complaint with fairness, and to respect students' responsibility for the choices they make.
I hope students with questions and concerns about these and other related issues will call upon me and my colleagues to join in conversation about them. Difficult matters are often difficult to discuss, but they deserve the benefit of accurate information, integrity, and a willingness to learn from one another.
