Education Secretary Betsy DeVos proposed new regulations that provide more protections for college students accused of sexual assault while imposing more burdens on rape survivors by narrowing the definition of sexual misconduct.
Studies find 3 million college students are sexually assaulted each year, but fewer than 10 percent of college assault survivors report their attackers. More than a third of students who have experienced sexual assault dropout of college.
Despite rising numbers of sexual assaults on campus, DeVos’ plan coincides with President Donald Trump’s disrespect for women in general and his remarks after the Brett Kavanaugh hearings.
Trump expressed concern over what he called “a very scary time for young men in America” who can be accused of sexual misconduct.
Kavanaugh, Trump’s second Supreme Court nominee, was accused by at least three women of sexual assault and similar misconduct dating back to his high school and college years.
“If you can be an exemplary person for 35 years and then somebody comes and say you did this or that, and they give three witnesses and the three witnesses at this point do not corroborate what she was saying,” Trump said. “It’s a very scary situation where you’re guilty until proven innocent.”
The education department proposals aim to balance treatment of alleged victims and defendants in forums for non-criminal campus justice, but what they likely will do is reduce the number of sexual misconduct cases, which saves money, according to estimates in the proposals, but leaves rape victims with less support.
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function,” stated the education department.
Once the proposed changes are published in the Federal Register, the public may comment during a 60-day review period. The proposed rule, section-by-section are here. The full rule in its entirety is here.
“To those who have been involved in Title IX cases, under which sexual misconduct cases fall, the proposals are a pretty clear message to let schools off the hook for sexual assault allegations and a boost for colleges’ bottom lines,” said Terry H. Schwadron, DCReport New York Editor. “In August, leaked copies of the new policy drew heavy criticism from survivor advocacy groups for making it harder for victims to report harassment and assault.”
Title IX is a federal civil rights law created to ensure equality among the sexes at all schools that receive federal funding, which includes nearly all educational institutions.
The proposed guidelines narrow the definition of sexual misconduct as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Although individuals are more likely to be struck by lightning than falsely accused of sexual assault, 1 in 5 women and 1 in 16 men will be sexually assaulted in college.
Jess Davidson, executive director of survivor advocacy organization End Rape on Campus, accused the Education Secretary of “silencing survivors.”
“Secretary DeVos’ long-awaited rewrite of Title IX enforcement regulation is worse than we thought,” said Davidson. “It will return schools to a time where rape, assault, and harassment were swept under the rug. These new rules betray the same attitude about assault that we saw from Senate Republicans the last few weeks – disparage and diminish survivors and discourage them from reporting.”
Davidson claimed that, “The definition is extreme and it’s going to require that students are harassed multiple times before they are able to receive any form of accommodation.”
The changes limit a school;s responsibility “conduct that occurs within its ‘education program or activity’” but that excludes off-campus housing, where most students live.
“Would it make sense for Larry Nassar not to be held accountable if he only abused student-athletes at off-campus events? It’s absurd,” Sejal Singh, policy coordinator for Know Your IX. Nassar was convicted on charges of being a serial child molester while he was the USA Gymnastics national team doctor and an osteopathic physician at Michigan State University.
Under DeVos’ proposals, an accused rapist may subject the alleged victim to a live cross-examination through a lawyer or other third person, while an accuser is allowed to request that an alleged offender participate from a separate room which prohibits “any unnecessary trauma that could arise from personal confrontation.”
The policy also recommends mediation rather than a contentious campus hearing.
The guidelines would restrict whom a victim can report to in order to implement corrective measures through the school. College students would only be able to report a Title IX issue with the school’s Title IX coordinator, creating obstacles for victims who might not be thinking clearly after an assault.
The proposals allow a school to use “either the preponderance of the evidence standard or the clear and convincing evidence standard,” putting a greater burden of proof on the victim.
The proposal was criticized by women’s groups, the American Federal of Teachers, Rep. Carolyn B. Maloney (D-N.Y.) and Sen. Patty Murray (D-Wash.), among others who say it is harmful for women and demonstrates that protecting students is not a priority for DeVos.
Since she was confirmed as Secretary of Education last year, DeVos has eager to unravel Obama-era Title IX guidelines and regulations. In 2017, DeVos met with people “wrongly accused” of sex crimes, mostly men, allowing sexual predators a greater feeling of safety on campus.
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