Sunday, October 29, 2017

DeVos and campus sexual assault

President Trump's Department of Education chair Betsy DeVos recently made headlines by rescinding the Obama administration's guidelines for campus sexual assault investigations/adjudications, as set forth in the so-called "Dear Colleague Letter.

DeVos decided to do so after meeting with multiple stakeholders/advocacy groups including, most controversially, "men's rights" groups and advocacy groups for the wrongfully accused. For example, one group she met with was Stop Abusive and Violent Environments, which advocates for increased due process rights for those accused of sexual assault on campus. The group was recently "labeled misogynistic by the Southern Poverty Law Center after it published a set of 'key facts' about domestic violence that said 'female initiation of partner violence is the leading reason for the woman becoming a victim of subsequent injury.'" It is incredible that an agency tasked with promoting the civil rights protections and anti-sex discrimination provisions of Title IX would actively seek the opinions of such an organization.

After repealing the Obama-era guidelines, DeVos put new interim guidelines (in the form of a Q&A) in place. Citing due process considerations, the guidelines now allow campuses to choose between the preponderance of the evidence standard and the clear and convincing evidence standard when investigating allegations of sexual assault.

I have actually been surprised by the public criticism of the preponderance of the evidence standard of review. Multiple news outlets, including USA Today, the New York Times, and The Atlantic have published editorials and opinion pieces supporting the decision to move toward a stricter standard of review in campus sexual assault investigations. While I support a fair review process, I also recognize the various reasons a preponderance of the evidence standard is appropriate for campuses. First, campus investigations aren't criminal investigations, and thus the preponderance of the evidence standard (which is used in civil proceedings) seems more fitting. Additionally, colleges and universities have an interest in protecting their students (both the accuser/survivor, and other students on campus) and should be able to do so by making their own determinations of whether or not student conduct violations have occurred. Why should allegations of sexual misconduct be held to a higher standard of review than other student conduct violations?

Most importantly, in my view, the preponderance standard places the accuser and the accused on more equal footing. This latter consideration is especially critical in sexual assault cases where there may already be a tremendous power imbalance between the accuser and accused and where social stigma and skepticism attaches to survivors from the moment they come forward.

While ample room exists for improvement in other aspects of campus investigations, I don't believe that the preponderance of the evidence standard is the problem. Heightening the standard of review would make it even more difficult for survivors to get a meaningful resolution and might further deter survivors from reporting sexual assaults.

Another troubling component of DeVos' interim guidelines is that it opens the door to informal resolution such as mediation. As I learned from watching The Hunting Ground, universities have a strong financial incentive to gloss over incidents of sexual violence that occur on campus. Despite this recognized conflict of interest, the interim guidelines fail to provide any details on how a mediation should be carried out. This is problematic, since universities have a strong incentive to steer parties toward informal mediation, rather than dealing with a more difficult (from a public relations standpoint) adversarial process. Furthermore, doesn't mediation intuitively signal that each party carries some blame or, alternatively, that there is no liable party? What message does this send to perpetrators who, through mediation, may evade meaningful punishment for their actions? Will mediation deter perpetrators from engaging in sexually assaultive conduct in the future?

Additionally, although a sexual assault is treated as a civil rights violation under Title IX, the fact is that the underlying behavior was sexually violent conduct. As a result, survivors of sexual assault often experience feelings of trauma, confusion, shame, and internalized guilt. Is a face-to-face mediation between a survivor and a perpetrator appropriate in the aftermath of a sexual assault? Are college administrators equipped to protect survivors and prevent additional trauma during the process?

Overall, I feel DeVos' interim guidelines signal that the current administration is more concerned with the rights of the accused than those of the victims. Furthermore, these new rules are a solution to a problem (false accusations) that is overestimated and overblown... only 2%-10% of rape accusations are estimated to be false. Compare the dubious concerns over a false accusation epidemic with the very real and demonstrable epidemic of campus sexual assault. Given the data, it should be clear that campus sexual assaults - not false accusations - are the larger problem. Thus, Title IX policies and procedures should be written in a way that leads schools to effectively and meaningfully address sexual assaults. Rather than giving campuses more leeway, we should give clear and detailed guidance for all schools to follow. This would would encourage consistent treatment of cases across campuses and make it more difficult for disingenuous institutions/administrators to sweep sexual violence under the rug.

A number of Democratic lawmakers have recently put forward legislation that would make certain advisory guidelines of the Dear Colleague Letter (including use of the preponderance of the evidence standard) actual law. Unfortunately, given the current political climate, I have little optimism of their efforts succeeding. Nevertheless, if and when Congress decides to codify guidelines for dealing with campus sexual assault, one can only hope it considers the purpose behind Title IX: to allow students equal access to education, with meaningful protections from sexual harassment and violence... not to shelter institutions or the accused.


Suzanne Connell said...


Thank you for another deeply insightful post! While I enjoyed reading your thoughts on the matter, I couldn't help but feel disheartened by the trajectory in which campus sexual assault is heading in the US. After viewing clips from 'The Hunting Ground' in class several weeks ago, I have become hyper-sensitive to the challenges faced by many women on American college campuses that I wasn't necessarily exposed to in my home university in Ireland. Now that I am immersed in the American educational system and I have also come to witness first hand the deficiencies in its treatment of the topic of campus sexual assault (you might recall I found the mandatory workshop on sexual harassment I completed to be disgracefully executed), I feel I can relate to the topic a bit better. I have also come to witness first-hand what the cultures surrounding fraternities and student athletes actually entail, and the threats encompassed in both of these factions of the student populace.

I'm particularly disheartened by the "men's rights" groups that have been set up to protect innocent men against the threat of false reporting, given the fact that false reporting isn't actually the problem here, rape and sexual assault is. I feel that this just feeds into the ever-present mentality of victim blaming that permeates not just American culture but almost every single culture worldwide. If the legislatures aren't going to take heed of the solid studies and statistics on the matter, and actually address this epidemic with the gravity it deserves and start seeing the long and tumultuous battle of reporting campus sexual assault from the victim's eyes instead of the accused, well then I'm fearful for the position of women and the protection and vindication of their rights in the US educational system and I really do hope the coming years boast major improvements.

Aoife Mee said...

I too, share your disappointment in the current administration's greater concern for protecting perpetrators of sexual violence (usually male) than victims (usually female). This attitude, coupled with the epidemic of campus sexual assault you highlight is, perhaps, reflective of a culture of gender based violence or "rape culture" that permeates not only American society, but many societies around the world.

Indeed, discourses that subtly justify violence against women exist at all levels of society. The media, for example, promotes the objectification and sexual “consumption” of women, as well as supporting dominant modes of masculinity and femininity. Furthermore, misogynistic discourses that legitimise and minimise issues of sexual harassment can be seen in the jokes and "locker room talk" of men (even those at the highest level of government, like President Trump). Indeed, such attitudes infiltrate legal discourses, as you mention, in terms of the standard of evidence used in such proceedings as you describe, but also in judicial attitudes which often reflect victim-blaming sentiments.

It seems to me that the root of the problem is this culture of gender based violence, and we cannot expect to see major political reform that will adequately protect women until there is wider cultural change in attitudes towards sexual harassment and assault.