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POST TIME: 8 September, 2018 00:00 00 AM
Are sexual harassers about to have free rein on American campuses?
Jill Filipovic

Are sexual harassers about to have free rein on American campuses?

Betsy DeVos’s education department is about to deal a major blow to sexual assault and harassment victims on college campuses. According to proposed rules obtained by the New York Times, the updated sexual misconduct rules would tip the scales in favor of the accused and make it harder for those who say they were victimized to get justice. In a criminal proceeding, that’s acceptable – the burden of proof of guilt beyond a reasonable doubt should fall to the powerful state. But these aren’t criminal proceedings: they’re civil rights proceedings, fundamentally about the right of women to get an education without harassment or abuse. The DeVos rules will make that harder – without adequately addressing the legitimate due process concerns that have arisen over campus sexual misconduct investigations.

The new rules reportedly define sexual harassment according to such a high bar that it will be nearly impossible to bring a case: sexual harassment, in the DeVos rules, is based on a very restrictive US supreme court case that defines harassment as “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”.

In other words, you are only sexually harassed if the harasser goes so far as to make it impossible for you to learn – at which point your education has already been impacted, possibly irreversibly. The idea that institutions of higher learning should expect students and faculty to not harass others, and should set a reasonable definition of harassment to ensure that everyone on campus has an equal opportunity to continue their education, is gone along with Barack Obama. The new DeVos rules give harassers nearly free rein, short of an ongoing campaign of sexual terror, to harass others.

DeVos has made it clear that her Department of Education is indifferent or outright hostile to sexual assault survivors

These same rules also let colleges off the hook for holding students accountable for violence. Under the Obama rules, schools were required to investigate any complaints between students, no matter where the alleged misconduct or assault took place. That makes sense, given that a lot of sexual assaults happen in spaces that are technically off-campus, like frat houses or a student’s apartment. The DeVos rules get rid of that, and only require schools to investigate on-campus assaults.

They also give schools significant leeway to circumvent justice – allowing them, for example, to decide whether or not to have an appeals process. The new rules also let the schools themselves decide which standard of evidence to use when adjudicating complaints, which means that the rights of both accusers and accused will depend on which college they attend – so that, for example, a student at Florida State University who says she was sexually assaulted could have to prove her claim according to a higher standard than a student making the same claim at the University of Florida.

One of the more egregious aspects of the DeVos rule is the expansive right given to students to cross-examination each other. Cross-examination is a crucial right in criminal cases, and it should of course be a part of campus disciplinary proceedings as well. But a saner version would allow each student to have an advocate who does the questioning (just like having a lawyer in criminal or civil court). Allowing an accused rapist to directly interrogate the woman he is alleged to have raped is cruel, irresponsible and wholly unnecessary. It will also understandably discourage women from reporting their assaults – who wants to go to the school authorities if you know that, as a result, your attacker gets to question and intimidate you?

While the DeVos rules would allow alleged rapists to question alleged victims, they do not spell out clear rules of evidence. In criminal and civil court, there are limits placed on what can be introduced, and there’s a judge who makes those calls.

Rape shield laws typically prevent extraneous and prejudicial information about a woman’s sexual history from being introduced; a judge in a rape case should rule that it’s wholly irrelevant that a rape victim wasn’t a virgin, or that she once wore a miniskirt.

A lawyer for the defendant will typically not be permitted to ask irrelevant questions that seek only to paint her as a slut. But under the DeVos rules, there aren’t these kinds of basic protections. Nor are there necessarily trained advocates representing each student. Instead, there are young people, many of them teenagers, navigating these waters. It’s a recipe for injustice and abuse.

From the beginning, DeVos has made it clear that her Department of Education is indifferent or outright hostile to sexual assault survivors. She met with a group of men’s rights activists, professional misogynists who have argued that women “instigate” domestic violence, and that abuse is caused by “female initiation of partner violence.”

One of DeVos’s top deputies told the New York Times that “90%” of campus sexual assault complaints “fall into the category of ‘we were both drunk’, ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right”. Those numbers don’t appear to be based on any actual statistics, just on Jackson’s perception.

That perception tells us a lot about how this administration views young women and sexual violence, and certainly foreshadowed these new rules. There’s no question that the Obama-era regulations, which were more strong suggestions than legal requirements, were often improperly implemented. But the DeVos rules don’t correct the biggest wrongs – consistency and transparency in proceedings.

Instead, they muddy the waters further, make bringing a complaint even harder for students who are victims of assault or harassment, and still don’t offer clear and appropriate protections for the accused. They make it harder for schools to fulfill their basic obligation to keep students safe by removing students who are violent assailants or vicious harassers from campus.

These rules do exactly what Title IX sought to combat: they make it harder for women to access an education without violence or interference. And they encourage schools to look the other way when it comes to those who harass, abuse and assault.

The writer is the author of the

The H-Spot: The Feminist Pursuit

of Happiness