Betsy DeVos Drops Title IX Sexual Assault Guidelines… We Have Strong Words

| TBS Staff

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This fall semester, Secretary of Education Betsy DeVos takes a font-bold step on behalf of suspected rapists and sexual assault perpetrators on campuses across the nation.

On September 22, the Department of Education announced that it would be rescinding Title IX guidelines issued in 2011 advising college campuses on their handling of sexual assault. The intent of those guidelines was to shine a brighter light on the widespread occurrence of campus rape and sexual assault, to hold colleges to a higher standard of accountability, and to lower the onerous threshold for proof placed upon the victim.

In essence, the guidelines called for colleges to take far more aggressive steps to protect victims, deter sexual assault, and punish perpetrators. In early September, DeVos referred to some of those accused as “victims of a lack of due process.”

Advocates for the decision say the rollback will lead to fairer outcomes for those accused of rape and sexual assault. Critics point out that this gesture helps to make the college campus a safer place for predatory men.

Which side is right? I guess that largely depends on what you think is a bigger problem on campus; rampant false accusations or rampant sexual assault.

We’re going to unpack that question in just a second, but we’ll just go ahead and spare you the suspense:

Rampant sexual assault is a bigger problem. Like, way bigger. The numbers are not even close. Structurally, institutionally, and culturally, incidents of campus sexual assault are likely to go unreported. And now, with this newest attack on women, we can only guess at how many others will suffer in silence.

Title IX and the Dear Colleague Letter

At issue in this discussion is a set of Obama-era guidelines that were issued in the form of a “Dear Colleague Letter under the conditions of Title IX. A portion of the United States Education Amendments of 1972, Title IX specifically restricts education discrimination based on sex. Over the course of its existence, Title IX has come to encompass protections against sexual harassment and assault, both of which are statistically discriminatory of women.

The guidelines are aimed at addressing the epidemic level of sexual violence on college campuses and, more importantly, the relative institutional indifference that has allowed this culture to flourish. From their silent protection of prominent student athletes, to the burdensome procedural realities facing victims, to systematic patriarchal confusion about the actual meaning of consent, colleges and universities have proven themselves largely incapable of confronting the issue without pressure from above.

The “Dear Colleague Letter” [PDF] brought that pressure to bear, calling on universities “to take immediate and effective steps to end sexual harassment and sexual violence.”

Most notably, the guidelines lower the standard of proof required to determine guilt in cases of rape and sexual assault. Historically, colleges have been held to a standard of “clear and convincing evidence,” demonstrating roughly a 75% likelihood of guilt. The 2011 guidelines called for the threshold to be lowered to a “preponderance of evidence,” denoting a 50.1% likelihood of guilt.

This is the dimension of the Title IX guidelines that has generated the greatest debate. Critics — DeVos and Donald Trump among them — view this lower threshold as an invitation for colleges to destroy the lives of innocent students who have been falsely accused. They also say that this strategy undermines the right to due process for those who have been accused of rape or sexual assault.

Rampant False Accusations?

Of course, this position presumes that because the burden of proof has been lowered, there is now somehow a far greater vulnerability to false prosecution for the accused. So, are false accusations of rape rampant? And do the 2011 Title IX guidelines make them significantly more rampant?

In 2015, the Violence Against Women (VAW) research group produced a study [PDF] on the prevalence of false accusations in rape cases. In reviewing twenty prior studies on the subject, they found that the rate of prevalence ranged from 1.5% to 90% of all cases. This insane variability is obviously high enough to be meaningless. So the VAW research group dove into the individual research studies and found that a vast majority of lacked any kind of academic rigor or scientific control and that many of these findings were based on a variability among police report crime classifications.

At the end, the study estimated that 2% to 10% of cases are a consequence of false accusations. Based on a thorough review of each case file in consultation with police investigators, the researchers found that only eight of 136 sexual assault cases examined over a ten-year period could be “coded as false allegations.” This is a 5.9% rate of false accusations — not a rampant epidemic.

For its part, the Department of Education under Betsy DeVos perceives these rates as evidence of a serious sociological problem. And in the aftermath of the 2011 Title IX guidelines, critics have referenced a few anecdotal cases to underscore what they view as the problem. Insider Higher Ed discusses two cases, one from the University of Texas at Arlington and another from Cornell.

While both of these cases are tragic, there is no compelling reason to believe either student was falsely accused. Advocates for the accused point out that neither defendant had the opportunity to directly question his own accuser in a hearing. But given the intimidation, disempowerment, and emotional trauma associated with sexual violence, this is not the most compelling argument. Nor does it incline us to believe that determinations of guilt were necessarily reached in error.

In an editorial so inflammatory you would almost think it’s satire, a writer for the New York Post worries that there is a “very real war on college boys,” one that she considers far more troubling than “the largely hallucinatory ‘war on women.’”

Of course, this is just the opinion of a random tabloid scribe. But what’s troubling is that it directly echoes the position of the current presidential administration and the leadership within our Department of Education. In addition to the Secretary’s well-stated sympathy to those accused of rape, the Trump-appointed head of the Department’s civil rights office, Candice Jackson told the New York Times that 90% of rape cases are the consequence of mutual intoxication. So Secretary Jackson isn’t accusing victims of lying. She just disagrees with their idea of consent, or the general English definition of the term.

Though Jackson has since apologized and acknowledged that her remarks were “flippant,” she has not gone so far as recognizing that remarks like this, particularly from a place of leadership, help to reinforce the persistence of rape culture, that by blurring the concept of consent, the Department of Education is sending the message that blurred lines will be viewed to the benefit of the accused and not of the victim.

If there is indeed a “war on college boys,” it is a counter-offensive against decades of on-campus sexual warfare against women. And with the most recent rollback, all evidence suggests that the forces of gender inequality are massing once again. Because while there may not be a lot of statistical evidence that false accusations are rampant, the battlefront has been raging with unreported campus rape cases for decades. This new post-rollback environment gives those who would make war on women a flag under which to do so.

The Real Epidemic: Rampant Under-Reporting

Let’s start with a few facts and figures that don’t make any sense when held up against one another. The preamble to the 2011 Title IX guidelines points out that one in every five college women is likely the victim of an attempted or completed act of sexual assault. That’s 20% of all women in college, a staggering and disturbing figure to be sure.

Here’s an even more staggering and disturbing figure though:

According to the American Association of University Women, 89% of U.S. Colleges reported zero incidents of rape in 2015.

Ok. Let’s take a look at these figures back-to-back again. One in every five college women were likely victims of a sexual assault in 2015 — but 89% of US colleges reported ZERO rapes that year.

So, either 11% of America’s colleges are bacchanalian sex dungeons or we aren’t getting the whole picture. What’s the missing piece of the puzzle?

Unreported sexual violence.

According to USA Today, based on data from 1995–2013, an alarming 80% of student victims don’t report their rape or sexual assault. Among the reasons why victims decline reporting are fear of reprisal, the desire for privacy, and the perception that the crime is not important enough to be reported to police.

Each of these reasons is given further credence by the rollback of Title IX guidelines. This gesture deepens the psychological and emotional sense of disempowerment inherent to sexual violence. For those who are afraid to come forward, DeVos sends a loud signal that they are right to be afraid, and that colleges and universities prefer they remain hidden in the shadows. Certainly, if 89% of campuses report no rapes at all, the shadows are already fully occupied.

The goal of the 2011 Title IX guidelines was to assureyoung women that they had support and protection from such abuse at the university and federal levels. The new emphasis on accountability meant that universities could no longer look the other way, that procedural norms needed to move away from reflexive victim-blaming, and that the onus was on college campuses to make women feel safe enough to come forward.

And while cases of false allegation are few in number and unconvincing in detail, the new Title IX guidelines actually helped bring forward a spate of allegations against colleges and universities. In numerous instances, colleges were accused of failing to provide proper protections, creating educational environments in which women felt unprotected, and even explicitly neglecting to take responsibility in instances where sexual violence had occurred.

In several key cases:

So these cases all have a few things in common. First, by raising Title IX complaints, students were able to leverage federal protection and spark Department of Education investigation. In the absence of these protections, students experiencing sexual violence at the systemic and cultural level will have nowhere to turn with their grievances. There is no way to overstate the devastating feeling of helplessness for a victim facing institutional indifference or worse, hostility. Removing those protections deprives victims the advocacy of federal oversight.

The other commonality that jumps off the page here? None of these cases centered around the public dressing-down of an alleged perpetrator. While much of the Department’s rollback language centers around the mythology of rampant false accusation, Title IX cases have largely disgraced universities, as opposed to individuals.

So if you’re wondering why DeVos and the Department of Education would go so far out of their way to advocate for the statistically minuscule population of men falsely accused of rape to the detriment of the far larger statistical population of woman who honestly report sexual violence — to say nothing of the enormous number of victims who never come forward — the above cases are pretty revealing.

This rollback of protections isn’t about sparing the lives of the falsely accused. This is about insulating universities from criticism, sparing them from taking responsibility, and creating space to forgive those schools that do fail to protect women.

The Brock Turner Effect

What is the likely impact of this rollback? Business as usual obviously. Colleges simply don’t want to answer to this problem. It’s too complicated and messy. Rolling back Title IX allows us to all pretend sexual violence against women isn’t an on-campus epidemic. It discourages reporting and casts an emotionally devastating shadow of doubt on the victim.

And most importantly, it reinforces the view that colleges, judges, and politicians are inherently in the corner of the accused, and not the victim. Betsy DeVos argued that the 2011 guidelines had to be rolled back so that “victims of a lack of due process” don’t suffer the kind of harsh public pillorying that can destroy one’s reputation, career, and future.

And that’s where Brock Turner comes into the picture.

Just to remind you, Turner is the ex-Stanford paramecium who served a summer camp-length sentence for raping an unconscious woman behind a dumpster. Through the formal administration of justice, Turner was sentenced to six months in jail. He ultimately only served three. And Brock Turner wasn’t just accused of rape. He was caught in the middle of it.

What followed was a massive public swell of disgust over Turner’s behavior and his gentle sentencing. And how did the accused land such a light sentencing, in spite of the irrefutable case against him? Turner’s attorney collected a series of letters and testimonials on Brock’s behalf, all from sympathetic friends and family. The goal was not to deny the rape had occurred but to paint a portrait of Turner as an upstanding citizen with a bright future ahead of him. In his letter, Turner’s father even wrote that it seemed unfair to levy such a harsh punishment on the kid “for 20 minutes of action.”

Boohoo for Brock Turner, right?

But it actually worked. The judge in the case worried that the negative impact of a harsh sentence might damage Turner’s future potential as a student, athlete, and professional. He served three months. His victim will serve a lifetime of psychic scars and emotional trauma — a trauma exponentially magnified by the sense that Turner largely skated away without facing any kind of meaningful justice. Turner was the beneficiary of sympathy. His victim was not.

The displaced sympathy that protected Brock Turner from serving a real sentence for his crime is the very same sympathy drives the recent move by the Department of Education, and that imagines a massive conspiracy in which vindictive women are out to destroy the lives of innocent boys.

DeVos has struck a major blow on behalf of all actual rapists who still wish to enjoy bright futures in spite of their misdeeds. Brock Turner’s life may be in shambles. But think of all the other high-achieving rapists that might still be spared disgrace.

Without a Compass

As for the falsely accused? As they have always been, they will constitute a small minority of all sexual violence cases. If we enter into each case with the unfair assumption of guilt, it’s because more than 90% of all allegations are not false.

All of this is puts aside the erroneous assumption that the 2011 guidelines somehow create more space for false allegations to be proven true. If this is the case, it isn’t because the Title IX guidelines encourage false prosecution. It’s because colleges and universities continue to lack proper training in the subject matter.

Evidence is borne out in the above-mentioned Title IX cases — many colleges remain so steadfastly tied to their patriarchy that they don’t understand the concept of consent, they don’t understand the implications of victim-blaming, they don’t comprehend the nuances of gender-inequality on campus, and because of these blind spots, they lack the capacity to hold meaningful and constructive disciplinary hearings related to the subject.

Obviously, rolling back the current guidelines is an exceptionally poor way to improve that understanding. It’s basically like saying, we’re lost and this partially visible map is to blame. Let’s throw it away instead of trying to look at the whole thing.

More guidance is needed — not less — both to ensure adherence to due process and to protect women against sexual violence. More research is needed to determine how best to reduce the danger of false prosecution without undermining the victim’s right to report and to be believed. More instruction is needed to ensure that colleges and universities know how to administer hearings that are fair, equitable, and illustrative.

The recent rollback achieves exactly the opposite of all those things. The Department of Education has taken the view that colleges can handle these matters without oversight.

All evidence to the contrary. Colleges do not know how to handle these matters, and without pressure from above, they will choose to look the other way. The 2011 guidelines called on college campuses “to take immediate and effective steps to end sexual harassment and sexual violence.”

As of now, this directive has been rolled back, effectively telling colleges that they are no longer expected to take such steps, which means there is no end in sight.

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