By Douglas Fierberg & Elizabeth Munoz
The Trump Administration’s ill-conceived proposed changes to Title IX will have devastating effects on the hard-fought progress made on decreasing sexual assaults on college campuses and encouraging survivors to report such misconduct.
According to the Brennan Center for Justice, approximately 80% of rapes and sexual assaults are not reported. That number is alarming, for obvious reasons. Yet, the proposed regulations make both the reporting process and the investigation even more challenging, confrontational and threatening, further discouraging survivors from coming forward and decreasing the ability for justice for survivors.
First, rather than the current “preponderance of evidence” standard, which requires that the wrongdoing is proven as being more likely than not (over 50%), the regulations increase this standard to “clear and convincing,” which is a significantly higher burden of proof.
There is no valid reason for increasing the required burden of proof for alleged sexual violence, when all other misconduct, including violent and deadly criminal acts, are judged in school disciplinary hearings by a preponderance of the evidence. For example, a student defending himself in school disciplinary proceedings for allegedly killing, maiming, assaulting, stalking, etc., another student may be found responsible if his culpability is established by a preponderance of the evidence. Were he charged with an act of sexual violence, though, the government and Secretary DeVos believe his responsibility should be established only by the higher standard of clear and convincing evidence. Why the difference? Historical and wrongful gender bias, pure and simple. The fact is that men (the overwhelming majority of offenders) and women presently have numerous rights to defend themselves at school hearings, and appeal adverse findings to multiple levels of oversight. The idea that alleged offenders presently lack due process in defending themselves is pure fiction.
Second, the current disciplinary systems at schools permit extensive questioning of the survivor and accused to challenge their respective accounts and testimony, though under reasonably controlled circumstances.
Most often, this involves presenting questions to the judicial panel to be posed to the other party for purposes of exposing inconsistencies or other shortcomings in their claims. This keeps the proceedings civil and meaningful. The proposed regulations would essentially set the dogs loose by allowing the representatives of the accused to directly cross-examine, attack and intimidate the survivor with questions that have not been subjected to any prior review by the judicial panel. The foreseeable result is that survivors will face scathing, wholly irrelevant, abusive and inadmissible questions before the panel even has an opportunity to prevent the abusive questioning. One simple example where this will certainly cause harm and havoc to survivors is when the accused will invariably seek to use a survivor’s other sexual relationships to prove his own innocence. Virtually every state and court either prohibits this line of inquiry entirely under so-called Rape Shield statutes or severely limits and closely supervises this line of questioning because of its general irrelevance and abusiveness. But, by allowing direct questioning by the accused and his representatives, the regulations will undoubtedly result in this type of abuse, which, like bruises, do not simply disappear after the beating stops.
Third, the proposed guidelines change the definition of sexual harassment to be an event, “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
Yet, the question of what constitutes sexual abuse and harassment are so often inextricably connected to the specific, unique and subjective surrounding circumstances and persons involved. It still matters that a young woman is regularly harassed at school by another student about her gender, body and physical appearance, even if she, for reasons particular to her, is more sensitive or vulnerable to such comments than other young women. That the harassing comments regularly devastate her are not “objectively” offensive to others should not give the abuser a license to continue, and this is a long-settled principle of American law: A wrongdoer is never deemed entitled to a healthy, strong victim by any actual or quasi-judicial forum in this country. The wrongdoer is responsible even if his conduct might not have harmed others.
Finally, the proposed regulations lessen the responsibility of schools to protect students to misconduct that occurs on campus, exempting the wide-range of misconduct that takes place in off-campus fraternity houses, other school-related locations, parties and events, even though a substantial portion of sexual assaults occur in these circumstances, and such misconduct invariably carries onto campus because that’s where the assailant and survivor reside and attend classes.
It’s on campus – in the dormitories, classrooms, cafeterias, libraries and at school events – that the survivor faces the presence, threat and terrifying harassment of the assailant and, often, his friends and supporters. It is this threat, unchecked and unresolved, that causes so many survivors academic harm, exclusion, and other damages. There are absolutely no legal or moral bases for permitting schools to protect a survivor’s educational rights in this circumstance.
Considerable institutional, societal, and structural barriers are already in place which discourages survivors of assault from reporting their assault. Likewise, those and other structures provide due process, meaningful hearings, and appeals to persons accused of engaging in sexual violence and misconduct. The proposed regulations do not fix real problems in the system. Instead, if implemented, they are sure to further discourage survivors from reporting sexual assaults, harm them when they pursue valid claims, and pave the way for numerous assailants to evade responsibility for their misconduct.
 The principal insurer and risk-management company for universities conducted a study that found that 41% of assaults occur at off-campus parties.
To offer your input, please go to https://www.regulations.gov and search for Docket ID “ED-2018-OCR-0064” or “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” to begin the process and click on the option to “Comment Now”. Comments are accepted as a text entry or uploaded document, either Microsoft Word or Adobe PDF (text-searchable preferred) and should include the Docket ID. Please note that all submitted comments are made publicly available online, so do not include anything you don’t want to be made public.
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