In 2018 alone we have seen several landmark cases in sexual assault. The nation watched Dr. Christine Blasey Ford testify against Supreme Court Justice nominee Brett Kavanaugh. Former USA Gymnastics and Michigan State doctor Larry Nassar was sentenced to 40 to 175 years in prison for 10 counts of first-degree criminal sexual conduct. University of Southern California Gynecologist Dr. George Tyndall faced hundreds of civil claims from women who allege sexual abuse and harassment.
Earlier this month seven women filed a federal lawsuit against Dartmouth College alleging that it allowed three tenured professors to discriminate against, harass and sexually assault female students for more than a decade.
This same week, the Department of Education (DoE) Secretary Betsy DeVos released the much anticipated proposal for how colleges and K-12 schools must respond to allegations of sexual harassment and assault, just over a year after she rescinded the 2011 “Dear Colleague” letter of guidance from the Obama administration regarding how federally funded institutions should address sexual misconduct involving students and employees.
This proposal reflects DeVos’ previously expressed opinion that guidelines from the Obama administration produced a “failed system” which denied the accused the right to due process and institutional overreach. The new rules would govern the way Title IX of the Education Amendments of 1972 is implemented and will not be finalized until after a public comment period.
The proposal provides a stricter definition of sexual assault, limits university liability, allows institutions to select from two standards of evidence instead of mandating “preponderance of the evidence” and will allow cross-examination of the accuser. Preponderance is based on the more convincing evidence and its probable truth or accuracy and not on the amount of evidence whereas the new standard, “clear and convincing evidence,” is stricter.
These regulations will make sex crimes on college campuses even more difficult to prosecute and will likely discourage young assault victims from coming forward. It is also important to consider that the wealthy will be able to hire high-priced advocates while lower income students will not, which will be problematic in cases with wealthy alleged perpetrators and accusers of low socioeconomic status.
Although we at The New Paltz Oracle agree that the proposal offers some improvement by codifying some of these Title IX regulations, we believe that rule changes will ultimately stifle victims of sexual assault and harassment.
Sexual harassment is currently defined as an “unwelcome conduct of a sexual nature.” The proposal would narrow the definition to an “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Although the regulations imposed by the Obama administration were cumbersome, they were not unworkable as colleges are able to adjudicate most Title IX complaints fairly and effectively through accurate understanding of its complicated processes.
According to a survey conducted in January by a nonprofit called Stop Street Harassment, 81 percent of women and 43 percent of men have experienced some form of sexual harassment in their lifetime. This survey defined sexual harassment to include verbal forms of sexual harassment, like being catcalled or whistled at or getting unwanted comments of a sexual nature in addition to physical harassment, cyber harassment and sexual assaults. To narrow the definition of sexual harassment would deny agency to those experiencing many of these forms of sexual harassment on college campuses.
The new evidentiary standard is too strict for Title IX investigations. “Preponderance of the evidence” is an accepted standard in civil rights cases that does not privilege the rights of accusers or the accused whereas the new standard would shift the burden to the accusers. The new regulations would also permit cross-examination of accusers by an accused’s representative. Although this is common practice in our country’s legal system, it is not conducive to a claim being mitigated under the jurisdiction of Title IX.
According to the Rape, Abuse & Incest National Network (RAINN) only 20 percent of college-aged female victims even report instances of sexual violence to law enforcement. Additionally, an average of only 310 out of every 1,000 rapes are reported and only 57 of those reports lead to arrest. Of those arrests, 11 cases will be referred to prosecutors with seven resulting in a felony conviction and six in incarceration; this means that out of every 1,000 rapes, 994 perpetrators will walk free.
The new rules would also restrict the cases colleges are required to investigate to include incidents that occur on campus only. Colleges would also no longer be mandated to pursue cases that are not reported to officials who have authority to take corrective actions, such as a Title IX coordinator.
This part of the proposal effectively ignores the realities of being a college student. Many students live off campus; 54 percent of SUNY New Paltz students do not live in college-owned, -operated or -affiliated housing. Additionally, the disclosure of sensitive, personal information by a college student is more often disclosed to a trusted advisor, professor, coach, coworker, colleague or friend, not the campus Title IX official. To limit a college’s liability based on location or to whom an incident is reported would allow colleges to elect not to pursue many cases which pose the greatest threats to victims and other students.
Sexual assault and harassment on college campuses is a national problem and the attempts by DeVos intended to make the policies and procedures more equitable for the accused are not solutions.
We at The Oracle believe that victims of sexual violence need to be empowered through policy and procedure of support in order to combat perpetrators on college campuses. Furthermore, we oppose the narrowing of the definition of sexual assault, limiting college liability based on location of incidences and reporting procedures or the proposed new evidentiary standard.
We believe that Title IX investigations should remain a process driven by the complainant. While codifying regulations for these processes and procedures is well-intended, DeVos has missed the mark with this proposal and will make it more difficult for victims to seek justice on college campuses with these rule changes. We urge every college student to take their education of Title IX policies and procedures in order to participate in this public comment period and protect and support their peers and survivors from sex crimes on campus.