Elizabeth McCann/Staff Writer
Last week, United States Secretary of Education Betsy DeVos announced new regulations to Title IX of the Education Amendments of 1972. These new changes will affect how colleges and K-12 schools handle sexual assault allegations, investigations and cases.
However, there are too many stipulations in the proposal that excuse universities of the responsibility to investigate.
DeVos’ proposition aims to level the rights of the accused to those of the complaitant by changing the defintion of sexual harassment, the standard of evidence for the cases and the procedures for a school to investigate an allegation. These revisions will discourage sexual assault victims from coming forward.
New Definitions, New Loopholes
The new regulations would narrow the definition of sexual harassment to “unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
This is in stark contrast to the Obama administration, which defined sexual harassment as “unwelcome conduct of a sexual nature” in the letter titled “Dear Colleague,” which was sent to universities across the nation.
The new definition for sexual harassment allows universities to deter cases as the complainant now has to demonstrate proof that the harassment is affecting their involvement in their academic disciplines.
Hence, the new standard would result in a loophole that allows administrations to ignore allegations due to the utilization of subjective terms like “reasonable person” and “objectively offensive,” effectively resulting in less victims coming forward for fear their case will be denied.
The Standard Of Evidence
In addition, there’s also talk of changing the current protocol for the evidence used in civil court cases.
According to Cornell Law, “preponderance of evidence” is met when there is a greater than 50% chance that the facts of the evidence is true. Instead, the new regulations would now ask schools to use “clear and convincing evidence”—the highest standard of proof.
This new standard would make it even more difficult for victims to prove their case as many sexual assault incidents involve alcohol which can impair the memory of the victim—not to mention the psychological effects of the trauma causing one to dissociate pieces of the event.
Due to the limited amount of evidence produced from the sexual assault, the only evidence victims retain are their credibility and testimony. Therefore, the “preponderance of evidence” is more appropriate for these cases.
Schools will be able to choose which standard of evidence they would like to use, which would be troubling because there would be a lack of consistency in the handling of student sexual harassment cases across the country.
Other Features Restrict Victims Further
Another feature of the new policy is that colleges would only be required to investigate on-campus incidents or one that occurred at a school sponsored event. That is, the school is obligated to address an on-campus incident between students, but not an incident that occurred at a college house party.
Not to mention, universities can avoid the responsibility to investigate allegations if complainants have not reported their incident through the right authorities on campus. Thus, the incident must be reported to the university’s Title IX coordinator whom most students have no familiarity with—not a professor or advisor. The lack of knowledge of this figure or lack of comfort with this figure will discourage students from reporting sexual misconduct.
Without a doubt, I believe that the accused deserve due process and a fair trial. However, certain points in the proposition are detracting from this very goal. The stringent additions to evidence are resulting in loopholes that pardon schools from the obligation to investigate and hold fair cases, placing undue stress on victims.
The definition created by the Obama administration needs to stay intact. Each incident of sexual assault is distinct. Therefore, a wider definition that can apply to the stories of all victims is essential.
Not all victims will identify with the new wording DeVos plans to implement, but that does not make their stories less valid.
Featured image by Charles Edward Miller on Flickr.
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