This article, by Liz Theriault of the University of Maine, was originally posted in the Bangor Daily News on January 1, 2019 6:30 am.
In less than 30 days, the public comment period for the new Title IX sexual misconduct guidelines proposed by Secretary of Education Betsy DeVos will close. Formally announced in November, these guidelines narrow the definition of sexual harassment, and lower the level of responsibility that a college or university has when responding to any allegations. The new regulations are framed by DeVos as a way to level the playfield between the victim and the accused, but the changes actually pose a much larger danger to victims by protecting schools and swaying investigations and rulings toward the side of the accused.
DeVos’ proposed guidelines will constrain the meaning of sexual harassment into a stricter definition than was the standard in the Obama era “Dear Colleague” letter. The guidelines will change sexual harassment from “unwelcome conduct of a sexual nature” that results in a hostile environment to “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.” Furthermore, schools would only be held liable to take action if the student makes a formal complaint through official channels and if the action occurred on school grounds; in other words, telling a trusted professor, coach or resident adviser would not be enough, and instances in places such as off-campus apartment would not have to be investigated.
Instances of harassment are already historically underreported. The National Sexual Violence Resource Center released a study that found 89 percent of U.S. colleges reported zero incidents of rape in 2015 and more than 90 percent of sexual assault victims on college campuses do not report an assault. These statistics show how even before these stricter guidelines, victims are not coming forward to their colleges or universities. Creating more hurdles and barricades for victims to cross will lower these already rock bottom numbers.
These guidelines would also eliminate the “more likely than not” evidence standard that was previously in place, and replace it with the “clear and convincing” standards used in criminal cases, which demands more of the victim when coming forward. However, Jess Davison, executive director of the group End Rape on Campus, said in an interview with Vox that “they’re implementing a standard that is not neutral,” because the “preponderance of evidence” standard “assumes neither party is right or wrong” and “puts both students on equal footing,” while “clear and convincing” standards sway cases toward the accused.
In the case of Title IX proceedings, the use of looser evidence requirements is appropriate because the potential penalties are lower than in criminal cases, where the “beyond a reasonable doubt” standards are utilized. A school has no authority to send an individual to jail; the highest level of punishment faced in a Title IX proceeding is expulsion.
Beyond the logistics of what the proposed regulations would mean for victims of sexual assault and harassment on campuses, many advocates are worried that DeVos crafted the new guidelines without fully understanding the impact they will have on victims. Before the releasing the proposed guidelines, DeVos met with various groups, such as Families Advocating for Campus Equality (FACE) and Stop Abusive and Violent Environments (SAVE), both of which advocate for the rights of people accused of sexual assault, and the National Coalition for Men (NCFM). The president of NCFM has been quoted blaming a victim of caught-on-camera assault committed by football player Ray Rice, saying “if she hadn’t aggravated him, she wouldn’t have been hit.” The input of an organization whose leader had sided with an indicted assaulter should not be taken into consideration when attempting to level the playing field between victims and the accused.
Unfortunately, the University of Maine is highly aware of issues of rape and sexual misconduct. According to the university’s 2017 Annual Security and Fire Safety Report, provided by the campus’ police department, in the last three years, there have been 41 reported rapes and 18 cases of fondling.
UMaine, like colleges across the nation, has standards and resources in place for victims who wish to come forward but these could be affected by the proposed regulations. For example, the new rules could allow institutions to enter the dangerous territory of the investigation of sexual misconduct cases, even rape, by allowing mediations, cross examinations of victims and a higher standard of evidence, all of which could result in additional trauma for victims.
These new regulations expand the gray area in instances of reported sexual misconduct, increase the chances of a victim being exposed to traumatic investigation proceedings, reduce the responsibilities of a institution to their students and overall decrease the the level of equality between the victim and the accused in Title IX proceedings.
Elizabeth Theriault is a third-year journalism and political science honors student at the University of Maine in Orono. She is the communications intern for the Maine chapter of the national Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.
If you or someone you know needs resources or support related to sexual violence, contact the Maine Coalition Against Sexual Assault’s 24/7 hotline at 800-871-7741.