Betsy DeVos is (Strangely) Right: Campus Rape Guidance Needs Fixing

Convershaken Staff
September 8, 2017

Education Secretary Betsy DeVos has sparked outrage by deciding to review federal guidance on how colleges deal with sexual assaults on campus. Surprisingly, Trump's unqualified crony has made a good call: the Obama-era guidelines have resulted in administrators bypassing due process, shelving presumption of innocence, minimising accused students' ability to defend themselves and wasting resources on fatuous investigations.

Rape and sexual assault are abhorrent crimes that should be eliminated from college campuses. The common involvement of alcohol, the pressure of hook-up culture, social stigma towards promiscuity, the intrusiveness of intimate questions and rape kits, the prospect of being doubted or shamed by officials, and low rates of conviction make victims especially wary of speaking out, making it imperative for administrators to take all accusations seriously. Victims who report incidents should be protected from retaliation and further trauma, while perpetrators should be severely punished. 

The current guidelines - introduced in 2011 under 'Title IX', a federal law that bars gender-based discrimination in education - were intended to change blasé attitudes to campus assault in some colleges and deter them from sweeping cases under the rug to protect their reputations. They instructed colleges to treat claims more seriously and investigate them more aggressively, and lowered the standard for proving allegations to a 'preponderance of evidence' - or a likelihood of guilt over 50 per cent. However, the guidance may have swung the pendulum too far: some colleges now escalate all claims - regardless of merit, or whether the 'victim' views the incident as unlawful or even wants justice - and treat accused students as guilty from the start.

A recent article in The Atlantic offers several examples. One college student had a consensual sexual encounter, but later felt violated and reported it as an assault, ultimately leading to the accused student being barred from campus, contracting pneumonia, being suspended and graduating more than two years late. In another case, a neighbour thought he saw a football player hurting his girlfriend, prompting an investigation and his expulsion despite the girlfriend's insistence he had done nothing wrong. Another student was suspended after his girlfriend's roommate deemed her to be too drunk to consent to the foreplay they were engaged in, and as the girlfriend wasn't the complainant, she was compelled to answer intimate questions about their sexual activity. Finally, a male student lost his job and had to move out of his dorm, because a female student mistook him for a man who had raped her months earlier, thousands of miles away.

These cases highlight several problems with colleges' Title IX policies. The accused are subjected to immediate restrictions, receive few details of the claims made against them, and can be barred from living or working on campus, suspended or expelled, even if the ostensible victim denies an assault occurred. These policies are intended to protect victims, spare them the fear and trauma of meeting their attacker on campus, and ensure they aren't coaxed or pressured into recanting their claims. But they can make it extremely difficult for innocent students to fight charges levelled at them, or couples to dismiss accusations made by onlookers. Moreover, the guidelines have pushed colleges to hire full-time Title IX coordinators, including one that has received a single report of sexual assault in the past four years.

The backlash to DeVos' decision has been swift and unalloyed. Former Vice-President Joe Biden warned that any weakening of Title IX protections would be "devastating". Valerie Jarrett, one of Obama's senior advisors and the Chair of the White House Council on Women and Girls, bemoaned the move as "so wrong". And End Rape On Campus, a survivor advocacy group, accused DeVos of falsely equating the suffering of rape victims with that of rapists. "We will not accept this blatant favouritism for the rights of rapists under the guise of fairness," they added in a statement. However, a review of Title IX guidelines doesn't mean downplaying the trauma and violation of rape, nor does it mean protecting rapists.

DeVos outlined the crux of the matter in her speech. "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined." If she is withdrawing the guidance as part of Trump's sweeping repudiation of his predecessor's policies, and fails to procure a suitable replacement, then she deserves all of the criticism she's received. But if she acts in good faith and issues guidelines that protect and empower victims, but also ensure the accused receive due process, then all students will be better off, and colleges can employ smarter, more effective procedures that save time and money. Granted, that's quite a big if.