Betsy Devos’s New Title IX Rules Will Undoubtedly Leave Predators on Campuses
As an Off-Campus Survivor, I Would Know
After going out for a drink with a person in a position of power from the university I attend and consuming minimal alcohol, I experienced an hours-long black out at the bar and finally regained consciousness naked on a mattress on the floor of an apartment that I had never been to before. I reported this incident to the Title IX office and to city police. The university eventually determined that “as a direct result of the investigation,” this person would “no longer be employed at or affiliated with the university.” This incredibly rare decision to eliminate him from campus was a tremendous win for protecting the community. However, under Betsy Devos’s new Title IX rules that have just been finalized, he would still be there. The university would have no responsibility to remove or even investigate him.
Universities are already notorious for covering up sexual violence, and Betsy DeVos just made it easier. While the complete overhaul of Title IX rules includes point after point to impede survivors from reporting sexual violence to their schools, perhaps the most appalling rule is that universities no longer have a responsibility to investigate sexual violence that occurs off campus (excluding school-owned property). This is incredibly problematic, considering that nearly 66% of sexual assaults occur off campus. In my situation, I was at an off-campus apartment. Despite the predator being in a position of power at a large university, a person with contact to many young students, under the new rules I would longer be eligible to report through Title IX.
A matter of location should not free universities of the responsibility to investigate their employees, faculty, and students when a survivor reports a severe and violent act of gender discrimination and violation of policy. But under the new rules, the danger that the university agreed he posed to the campus would have suddenly evaporated simply because this rule would have blocked me from reporting it in the first place. And with a criminal case still creeping along years later with no end in sight, it is unlikely he would have been put on leave or fired without a definite criminal consequence without my participation in the Title IX investigation. (Even still, some universities continue to pay indicted sexual predator employees.)
DeVos has also permitted schools to raise the required standard of proof from a ‘preponderance of the evidence’ (around 50%) to ‘clear and convincing evidence’ (around 75%). Sexual assault is a crime that intentionally occurs behind closed doors, with no witnesses, and often without unequivocal proof that the crime occurred as reported. The DNA “smoking gun” evidence attainable from sexual assault examination kits often sits on shelves in backlogs for months or years before it is tested, if it is ever tested at all. And lastly comes the question of consent, the often-cited ‘most difficult to prove’ part of these cases. All of these elements make often ill-informed, untrained, and underprepared Title IX investigators incapable of making informed findings on these cases. Many Title IX investigators are not investigators by education or training, yet they are being asked to examine these cases with the expertise of an attorney. Title IX hearing panels also may not have properly trained personnel. Raising the burden of proof only adds to the burden of survivors to plead their case to personnel who do not understand the dynamics of sexual assault and trauma, providing an unearned assist to the respondent.
Universities have the option to determine which standard of proof they want to follow. Even for universities who publicly elect to follow the lesser standard, they are under no obligation to follow them behind closed doors. Survivors will have no legal recourse against Title IX offices who claim to follow their own less rigid internal rules yet make judgments about cases based on the new federal rules. This discrepancy is bound to cause confusion for survivors and make schools appear safer than they truly are. For example, in my situation, although I was told the standard of proof was a preponderance of the evidence, my investigator at one point informed me that the reality was that for a finding to be made against the respondent, they needed my case to be “bulletproof”. It is difficult to believe that my university is the only university that operates this way.
DeVos has also insisted on allowing an adversarial, court-like environment for universities to handle sexual assault investigations. Survivors will be exposed essentially to a trial with live cross-examination, which is often traumatic and harmful to their well-being. Some universities currently handle cases behind closed doors, receive statements and evidence from the involved parties who never have to be in the same room, and review the evidence provided to make their decision. I had the good fortune of attending a university that did not subject me to live cross-examination by an attorney of a wealthy and privileged client while I was a broke graduate student with few resources of my own. The uneven power dynamic that survivors could be subjected to depending on who the respondent is and what kind of resources they have should be sufficient to understand that this unnecessary process is not often going to be fair or unbiased.
Additionally, for survivors who report concurrently to police departments, Title IX investigations, although slow and painful, are often resolved more quickly than criminal cases per the university’s own guidelines. This means that any statement the survivor makes in a campus trial will likely become an additional statement that can be submitted to police after being picked apart by a defense attorney that the respondent is likely to hire for the campus and criminal cases. Much like the sound legal advice that a civil case should never precede a criminal trial due to the possibility that any minor inconsistencies at all can allow law enforcement authorities to close and drop the case, the same logic applies to campus investigations. If I had not been able to give my confidential statement and evidence directly to the Title IX office without fear of a brutal cross-examination to follow, I likely would have elected to not participate because I viewed the potential for criminal repercussions as more severe and important. This decision would have haunted me and also continued to leave the campus community at risk.
While universities have long feared (and received) lawsuits and negative press over mishandling sexual assault cases, the priority of the university should always be primarily on the safety of the campus. When universities make the choice to put survivors through the pain of a trial that does not need to occur, to up the standard of proof to an unreasonable degree, and to ignore 66% of the sexual violence involving their community, universities are making the choice to further harm survivors, discourage reporting, and keep predators on campus. The new Title IX rules are proof that universities who follow them in their most rigid form do not value safety over image. Action must be taken to reverse these harmful policies.