Who Gets to Define Campus Rape?

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Reposted With Permission From The Author, Nicole Bedera.

Original New York Times Article Can Be Found Here

Who should have the right to define rape: survivors who have experienced sexual violence or those who are accused of perpetrating it?

That is the core question raised by Education Secretary Betsy DeVos’s decision this month to replace Obama-era guidelines on how universities handle sexual misconduct complaints. In a strongly worded speech, Ms. DeVos made clear that she believed the previous administration had used “intimidation and coercion” to force colleges to adopt disciplinary procedures that deprived accused students of their rights.

To come to these conclusions, Ms. DeVos and her staff appear to have given special consideration to the concerns of men accused of sexual assault. After one hearing about campus rape policies, Candice Jackson, the top civil rights official in the Department of Education, said, “The accusations — 90 percent of them — 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.’ ”

Ms. Jackson has since called these remarks “flippant,” but they reveal a gross misunderstanding of sexual assault. Ms. Jackson essentially intimated that she believes either that alcohol-facilitated sexual assault and intimate partner violence are not real or that, at the very least, they are not harmful enough to merit disciplinary action. No wonder Ms. DeVos thinks many sexual assault complaints on campus are baseless. According to Ms. Jackson’s incorrect logic, almost any college man facing disciplinary proceedings would be falsely accused. And yet there is plenty of evidence that false accusations of rape are rare.

Obama-era policies did not malign men. What they did was make it easier for victims to come forward. A 2011 “Dear Colleague” letter from the Obama administration advised universities to change the standard for how to determine guilt from proof that was “beyond a reasonable doubt” to a “preponderance of evidence” — or, more colloquially, more likely than not.

Before 2011, most colleges had already voluntarily made these changes. There are several good reasons for that. The “beyond a reasonable doubt” evidentiary standard usually applies to criminal charges — and college tribunals are not criminal courts. Colleges can’t determine whether or not an assailant will go to prison. But they are required to keep students safe and promote equal access to education under Title IX, the civil rights law that secures nondiscrimination on the basis of sex or gender in federally funded educational programs. Sexual assault complaints are essentially civil rights disputes, and a preponderance of evidence standard is what is legally appropriate in civil rights cases.

The preponderance of evidence standard is also survivor-centered. When judging whether someone has been raped, it’s almost impossible to assert that a sex act constituted violence “beyond a reasonable doubt.” Many survivors struggle to produce what campus hearing boards would consider evidence, especially when it comes to acquaintance- or date-based sexual assaults in which alcohol made it impossible for someone to physically resist. Sexual assaults also commonly occur away from third-party witnesses, limiting the potential for corroborating testimonies. Finally, trauma can make survivors seem disorganized to campus administrators who are untrained.

The difficulty in providing hard evidence has long presented a devastating barrier for victims’ access to recourse and remedies, and it discouraged survivors from coming forward. The Obama administration responded to survivors’ needs by lowering the burden of proof necessary to gain access to institutional support. That more survivors than ever are reporting their sexual assaults to their universities shouldn’t lead us to the conclusion that more college students are being raped or that more students are lying — just that more feel comfortable coming forward.

Of course, being accused of sexual assault hurts. And there are things that we can and should do to help accused students — namely, providing them with psychological counsel. But accused men’s pain does not excuse rape, and men shouldn’t be the ones defining it. Most rapists, even those who have been criminally convicted, will never label themselves as such. More broadly, there is a tendency on the part of college-age men to define sexual assault according to their own standards, not according to campus guidelines.

The ramifications of sexual assault are severe. Especially when they don’t receive services, survivors often experience post-traumatic stressdepression and suicidal ideation. They are at a higher risk of chronic health conditionsfuture sexual victimization and lowered academic achievement. Though they vary, the approximations of how many women have been sexually assaulted in college are always high.

That should be the education secretary’s biggest concern.