This Week in the Trump Administration: University Sexual Assault Policy
“We will not accept this blatant favoritism for the rights of rapists under the guise of fairness,” says Annie E. Clark, executive director of End Rape on Campus. Clark is referring to the proposal from Department of Education secretary Betsy DeVos to end the Obama-era Dear Colleague letter against campus sexual assault.
As a college student, I’ve been working to bring awareness of college sexual assault to my campus and make sure survivors get justice and their voices are heard. As DeVos tries to undo the progress that’s been made for survivors over the last eight years, I will not stand by helplessly. Ms. DeVos is correct that the system is broken–but not for the reasons she’s saying. Here’s why:
There are two ways that a (university student) survivor of sexual assault can seek action against their assailant: through criminal courts (“beyond a reasonable doubt”) or through higher education (“preponderance of evidence”). Below is a flowchart of the two current legal systems my pre-law friends Sara and Karla made:
Beyond a Reasonable Doubt
Before the Obama Administration shifted the university standard to preponderance of evidence, the beyond a reasonable doubt standard was in place. The only resource to report sexual assault was the police. If the victim decided to press charges, a criminal investigation could be launched (with permission from the state, if they decide the case is worth it at all).
Winning a case against a sexual assaulter in a criminal court is exhaustive, invasive, and oftentimes impossible. The “what was she wearing” stigma stems from the types of questions criminal courts ask survivors. Criminal courts rely heavily on witnesses (even though most rapes are behind closed doors), physical evidence (which can still be passed off as “consensual,” like the Erica Kinsman case), whether they resisted (what if the assailant was a friend or the victim was drunk?), and a very narrow definition of “rape” (i.e. penile penetration, sometimes only by the opposite sex). This is one reason rapist Brock Turner was sentenced to only three months in jail last year. Even though two witnesses pulled him off the woman he sexually assaulted, it didn’t “count” because they were drunk and he stuck a “foreign object” inside her (his finger). Ok.
Criminal court cases take years and are notorious for re-traumatizing the survivor and favoring the rapist. This is what the Obama-era Dear Colleague Letter aimed to replace: by creating an informal tribunal within the Title IX office of each university, survivors have the chance to seek justice in a civil suit. Ms. DeVos is trying to undo this new preponderance of evidence standard–because it’s “unfair” to the assailant. How can this be an issue when criminal courts were never fair to the survivor in the first place, though? It’s almost impossible to determine whether a sexual act was consensual beyond a reasonable doubt.
What is Title IX?
Title IX is a gender equity law that states, “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 is part of the Education Amendment of 1972, which corrected a gap in educational gender inequality from the Civil Rights Act of 1964. Many people still don’t understand what Title IX–most associated with female athletics–has to do with sexual assault. A survivor of sexual assault may experience many physical and psychological symptoms as a result, and is likely to run into their assailant again, commonly someone they may know well. The assault and subsequent proximity to their assailant creates a hostile, distracting, and unequal educational environment for the survivor. The assailant is also then free to assault again, since research shows that the high statistics of sexual assault (1 in 5 women) is not due to many perpetrators assaulting once, but few perpetrators assaulting many times. Trying sexual assault complaints as a civil rights dispute is legally appropriate.
In 2011, the Department of Education launched a federal investigation on hundreds of universities who underreported the amount of sexual assaults happening on their campuses (ask me sometime about why, because it’s too much to explain here). Although education is regulated at the state level, the federal government can enforce certain regulations (like Title IX) by threatening to revoke federal funding if the guidelines aren’t met. Consequently, universities created departments, resources, and courts to address their gross incompetency of pretending like sexual assault doesn’t happen.
How Does a Title IX Case Work?
In a Title IX/sexual misconduct court, different factors are used to determine if an assailant is guilty. Many more psychological factors are taken into consideration. A witness is not just someone who saw the actual assault occur, but could also be a friend who noticed behavioral changes in the survivor as a result of the assault. Testimonies from friends, parents, or professors are vital to preponderance of evidence, so if you’re ever asked to testify at one, please do.
As a reminder: a Title IX court is not a criminal court. If an accused student is convicted of sexual assault, a university does not have the jurisdiction to put them in jail. Instead, the assailant is expelled. The survivor can choose to also take criminal action (separate from the university), during or after the Title IX case. The purpose of the Title IX case is that expulsion of the assailant resolves the issue of their presence being an inhibitor to the survivor’s education. Ms. DeVos claims it’s unfair to deny assailants their due process. But Title IX court is not a disorganized, unfair justice system. “Informal” doesn’t mean assailants don’t get their due process; it means they aren’t criminally convicted. If anything, expulsion a light punishment that lets the assailant free to rape again somewhere else.
Numerous times, Ms. DeVos has brought up the fear of false accusations on the accused. Many studies have shown, however, that false accusations actually only occur 2-10% of the time. That means that 90-98% of all sexual assault reports are true. The increased number of reports during the Obama Administration doesn’t suggest that more people are being assaulted or that more people are lying, but that more survivors have the courage to step forward.
What Does Ms. DeVos’ Announcement Mean Now?
Title IX is a federal law that cannot be undone by the Department of Education or an executive order. The “sexual assault” protection cannot be taken out separately, either. If Title IX *happened* to be revoked by Congress, protection from gender-based discrimination in any form would no longer apply. Additionally, switching back to the beyond a reasonable doubt standard will be highly difficult for universities who’ve already implemented sexual misconduct courts.
Like I stated before, Ms. DeVos is right that the system is broken, but not for the reasons she says. She mixes up terms by suggesting universities apply the beyond a reasonable doubt standard. Beyond a reasonable doubt legally only applies to criminal cases, and university courts are not criminal courts (it would be “clear and convincing evidence” under universities). If Ms. DeVos really wants to change how we address sexual assault, we need to start way before college begins. A comprehensive sex education in elementary, middle, and high schools that informs not just what sex is but how we respect our partners is critical to changing rape culture.
Coming to college and being bombarded with messages of consent when no one besides my parents has ever addressed it thoroughly can feel disorganized and frantic. I’m not sure yet if these talks about consent even decrease sexual assault. But you know what is working? Giving students ample resources so that if they experience a sexual assault, they have the help they need and the peace of mind that their attacker will not harm them or anyone else on their campus again.
Students don’t want to play petty politics with you, Ms. DeVos. You say “we will treat all students fairly,” but the Obama Administration held rapists accountable and gave survivors fairer access to justice. Don’t silence their voices again.
