A few days before the Senate narrowly voted to confirm Brett Kavanaugh to the Supreme Court, President Donald Trump remarked that “it’s a very scary time for young men in America.” When asked if he had a similar message for women, he instead asserted that they were “doing great.” This insinuation that primarily female accusers were thriving at the expense of blameless men found an audience in the Betsy DeVos-led Department of Education. Last November, the DOE rolled out new Title IX guidelines specifically designed to ensure “fair and balanced [treatment] for all students.” However, instead of leveling the playing field, the proposal only stands to exacerbate the already unjust power dynamic between survivors of sexual assault and perpetrators.
Crafted following several meetings with men’s rights groups such as the National Coalition for Men, the new regulations are a radical departure from the Obama Administration’s interpretation of Title IX and unambiguously construct a number of protections for the accused. New provisions force survivors to testify in front of their abusers, allow universities to use higher standards of evidence, and redefine sexual assault in stricter terms. While safeguarding against false accusations is a valid objective, the inordinate amount of effort the DOE is exercising to achieve this goal is misguided – especially in light of multiple studies demonstrating that unfounded rape accusations are no more common than for any other crime. More importantly, it seriously endangers college students by silencing survivors and perpetuating a culture of sexual violence.
Less than ten percent of survivors of campus sexual assault report their abusers. Consequently, stipulations that discourage reporting should be held to strict scrutiny. The proposed requirement that witnesses have their credibility tested through cross examination fails to survive close critical analysis. Brown University President Christina Paxson has argued that “a shift to a more adversarial ‘courtroom’ environment may deter students from reporting sexual misconduct,” and the Obama Administration’s “Dear Colleague” Letter succinctly explains why: “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating.” Nearly one third of sexual assault survivors develop Post-Traumatic Stress Disorder, and they are also three times more likely than non-victims to have a major depressive episode. Forcing survivors to confront their abusers face to face would only amplify this problem. This bind leaves survivors trapped in a cruel Catch-22: either report the crime and risk further psychological damage, or remain silent and be deprived of justice.
Similarly, the new standard of evidence included in the DOE’s November proposal complicates the already difficult decision to report. Since 2011, schools receiving federal funding have been required to adjudicate sexual assault accusations on the basis of the preponderance of evidence, a fairly low standard far below that of reasonable doubt. Amy Chmielewski, writing in the Brigham Young University Education and Law Journal, is one of many lawyers who say the standard is harsh but appropriate “in large part because it encourages victims of assault to report the incident.” The clear and convincing standard introduced by DeVos not only has the potential to dramatically reduce reports, but moreover to dwindle the chance of securing a successful conviction – a terrifying possibility for a survivor subjecting themselves to months of painful scrutiny. Currently, less than one percent of rapes end in felony conviction, a rate so discouraging that feminist author Julie Bindel has wondered whether “rape might as well be legal.” The DOE’s guidelines only stand to accentuate the problem.
It is a different change, however, that threatens to be the most troubling provision of the proposed rules. Under the new guidelines, sexual assault would be defined narrowly 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.” This language necessarily suggests that there are forms of unwanted sexual conduct that are not “serious” enough to constitute assault – an especially disturbing implication considering Assistant Education Secretary Candice Jackson’s offhand comment that “90 percent of [accusations]… fall into the category of ‘we were both drunk.’ Policies like this normalize the false narrative that survivors are overly sensitive. By dangerously conflating assaults with flings, the DOE threatens to delegitimize the experiences of thousands of survivors.
It is no surprise that the DOE received more than 100,000 notes during the guidelines’ 60 day comment period. While DeVos’ attempt to bolster the rights of the accused was likely in good faith, her Title IX proposal will likely have catastrophic consequences if enacted. Providing justice to survivors of sexual assault was challenging enough during the Obama Administration, and the new rules represent an anachronistic step backwards. While these regulations immediately threaten current college students, they have the potential to have an even more devastating impact in the future. The Kavanaugh hearings teach that failure to adequately punish sexual assault in the present only leads to maintenance of the status quo in the future. While abusers ascend to prominent roles in Congress, the Supreme Court, and the White House, survivors suffer for a lifetime. Until serious efforts are undertaken to remedy the culture of sexual violence on college campuses, new generations of legislators will guarantee that their sons have the same protections they once enjoyed.
Photo: “Betsy DeVos“