By. Eli Spencer Heyman
[Content warning: sexual assault and harassment]
Editor’s note: This article refers to survivors of sexual assault and harassment as just that-- survivors. News stories conventionally call them “alleged victims”, but we have rejected this convention and its contribution to rape culture.
Image Credit: Danielle Perelman, Brown Students Don’t Trust The School To Fix Sexual Assault Policies
The Department of Education [DoE] is considering revoking the Title IX guidance issued under President Obama. In 2011, the department issued a Dear Colleague letter clarifying its interpretation of Title IX, instructing all schools that receive federal money on how to handle sexual assault and harassment. The most significant part of the guidance directed schools to use a “preponderance of the evidence” standard of proof in hearings, which approximately means 50% certainty, as opposed to the “clear and persuasive evidence” standard often used previously (~75%). Criminal cases typically require proof “beyond a reasonable doubt”. The letter is guidance, as opposed to a formal regulation; unlike regulations, guidance is considered a clarification of policy, and thus may be revoked [or issued] at any time without warning. In fact, the administration has already done exactly this on separate Title IX guidance relating to trans students. Candice Jackson, a member of the administration who has significant say in any decisions on Title IX, seems inclined to continue that pattern here. Revoking the guidance on sexual assault would allow universities to return to an era when sexual assault was swept under the rug – something Jackson seems all too willing to allow. Having gone to a private high school, I’ve seen too many times how badly schools without Title IX obligations handle sexual harassment and assault allegations. The last thing we need is to remove what standards we have.
Jackson is the new head of the Office of Civil Rights [OCR], which enforces Title IX, and she already seemed like a harmful choice when she was nominated. As BuzzFeed reported at the time, Jackson wrote a 2005 book criticizing sexual harassment laws in which she said that they lead men to “self-censor […] to avoid being accused”. She further claimed that such laws discount “the reality that unwanted sexual advances are difficult to define.” Last year, she posted on Facebook that “evidence is piling up that shows” the women who accused Donald Trump of sexual assault “are, frankly, fake victims.” And this month, she confirmed that she still holds these views by telling the Times that many assault allegations are made up after the fact.
While she later apologized for being “flippant”, Jackson has yet to demonstrate that the views she has held for years have truly changed. Her claims range from the merely inaccurate to the offensive, and they signal an approach to civil rights enforcement far more relaxed than that of the Obama administration.
Indeed, under Jackson, OCR has already begun scaling back Title IX enforcement. In particular, as Sens. Kirsten Gillibrand and Claire McCaskill recently highlighted, OCR “will no longer require OCR to review complaints they receive for the potential of a systemic problem, if such a systemic problem is not specifically alleged in the complaint.” As the senators note, investigations opened in this manner are not incidental but critical. A single complaint is likely to indicate systemic mishandling. (You can read the senators’ brief letter here.) For OCR to only open a schoolwide investigation when specifically asked will mean that far too many systemic problems go unresolved.
Jackson’s claims are just as wrongheaded as this decision. Only 2-8% of rape allegations are believed to be false, a similar rate to other crimes. (This statistic is widely cited; for example, it can be found in this Vox article.) Furthermore, of the many people I know who have experienced sexual assault, most did not report, and those who did had little success. A student at the University of Chicago told me:
“At UChicago, and at most other schools, getting involved with the administration is very hard. I was informed by the Title IX office after being assaulted that I had no chance at getting my perpetrator punished. Most other students who have seeked help from the administration have only faced backlash from the university.”
UChicago is far from the only school that has mishandled sexual assault cases. Stefanie Kaufman, a sexual assault survivor and recent Brown University graduate, said in a recent Facebook post: “I was told twice…that there was no reason to report, [and that] I would not be believed because of my mental illness, disability, and history of taking psychiatric medications.” (The post is quoted with permission.)
Under President Barack Obama, the OCR maintained a public list of universities under investigation; while the list is still updated, Jackson has suggested she might cease publication. Know Your IX, a group that advocates for Title IX protections and for sexual assault survivors, rightly criticized Jackson for this. The transparency provided by that list is important, as are the requirements OCR places on schools. I spoke to a woman who experienced an assault while attending a university in the South in the 1980s, long before Title IX was interpreted to set standards for sexual assault proceedings. She described her experience after the assault:
“When this happened to me, I knew it wasn’t right, and after talking with friends about it, [they said] ‘That was rape. You were raped.’ But there was no thought of even reporting it. It didn’t seem like something that would even be reportable.”
Asked if she felt she had any recourse available, she explained that looking back, her best option might have been “to have gotten his fraternity members to blackball him” – that is, to kick him out of the fraternity. However, this did not occur to her at the time. She added that, because such behavior was ingrained in fraternity culture, she doubts “that that would’ve gone anywhere. Recourse…there was no thought of even reporting anything.”
Institutional recourse is a critical option for survivors of rape and sexual assault, and if not for the 2011 Dear Colleague letter, it would be far weaker at most schools. The Secretary of Education, Betsy DeVos, held three meetings related to the letter on Thursday, July 13. The first was with nationally recognized groups that advocate for sexual assault survivors, including the National Women’s Law Center and End Rape on Campus. Previous reports indicated that Know Your IX was scheduled to meet with DeVos as well. However, after the group’s criticism of Jackson, they were abruptly disinvited, itself a worrying sign.
Also, after her meetings, DeVos equivocated. She said that “we can’t go back to the days when allegations were swept under the rug.” Yet she also told reporters that “if you had been in that session, I think you would have heard firsthand the pain of some of the individuals [accused of sexual assault].”
This is a familiar dance, expressing vague support for vulnerable people without defending the very policies that help them. In particular, it is quite reminiscent of a statement DeVos released after the OCR and the Department of Justice rescinded the aforementioned guidance on trans rights, in which she said it was an obligation for schools to prevent bullying “against those who are most vulnerable in our schools” despite removing formal obligations that did exactly that. That guidance was also issued under Title IX. Loretta Lynch, the Attorney General at the time, spoke directly to trans Americans the same week, saying, “we see you; we stand with you; and we will do everything we can to protect you going forward.” The implication of revoking it was clear, whatever DeVos might say: “we do not see you; we do not stand with you; we will not protect you.” Revoking the guidance on sexual assault cases would have a similar chilling effect.
DeVos’s next meeting was with MRA (“men’s rights activist”) groups advocating for students accused of sexual assault. Many of these groups are discredited and have little of value to offer in discussing Title IX proceedings. While I’m glad Sec. Devos met with End Rape on Campus, which does great work, I am alarmed that she also met with groups that advocate false, harmful ideas, and that she excluded Know Your IX for criticizing the administration. She also met in April with Georgia State Representative Earl Ehrhart, the sponsor of a bill that would have undermined Title IX protections in the state. Ehrhart has referred to Grace Starling, a survivor and advocate who played a key role in defeating the bill, as a “false accuser” and a “snowflake”; he has also called the present Title IX guidance “unconstitutional”. As a Georgian myself, I worried about the effect the bill would have on those friends of mine who go to school in the state. That DeVos met with someone as odious as Ehrhart well before meeting with any sexual assault survivors is highly concerning, and it does not bode well for any eventual decision. As Starling wrote last Tuesday: “Secretary DeVos, if you are meeting with Chairman Ehrhart, you owe it to Georgia’s students to meet with us too.” (It has since been announced that Jackson will meet with representatives of Students Against HB51.)
I also take exception to claims made by one of the groups DeVos met with this month, Families Advocating for Campus Equality [FACE]. According to Broadly, FACE once published an article claiming that “falsely accused students suffer emotional trauma similar to that of rape victims.” This is an absurd claim that is worthy of a full rebuttal. One relevant point is that most assaults are committed by acquaintances of the victim, which is reflected in an omnipresent harm: the loss of friends who decide to trust the person who committed the attack, rather than the survivor, or who say they “don’t want to take sides,” something one assault survivor was told by the only other person who could attest to her assault’s circumstances. That survivor said:
“As a victim, I felt vulnerable. My community’s responses (from my best friend to my school) were mildly sympathetic at best. Hearing that I shouldn’t punish him because that would ‘ruin his life’ was another source of trauma entirely – trauma I didn’t have room for when I was coping with seeing him in class every day.”
The survivor, who attended the Galloway School, a private K-12 school in the Atlanta area, also touched on her experience with the school:
“When I began searching in our student handbook, I had hope. I thought our school might be progressive enough to have some sort policy protecting victims. Instead, I found a few vague paragraphs about sexual harassment, but nothing about assault. It was very invalidating to discover that my trauma wasn’t enough to warrant any type of punishment towards the perpetrator.”
Many survivors feel violated, not only physically, but also emotionally, especially in cases of acquaintance rape, where someone they trusted decided that the friendship was less valuable than exerting power or obtaining sexual gratification. FACE certainly fails to recognize this, and it is all too likely that DeVos does as well. As Jessica Simpson, of End Rape on Campus, noted after the group’s meeting with Devos, “There are so many survivor experiences that weren’t represented in that room.”
It is worth considering the wide gap between the experiences of survivors and those of perpetrators – both in terms of the assault itself and what happens afterward. Brock Turner’s father infamously referred to his son’s assault, which left the survivor with pine needles in her vagina, as “ten minutes of action”. I worry that that’s all an assault is to its perpetrator. There is little, if any, regard for the survivor, whose entire course of life is often altered. One former student dropped out of the University of North Carolina at Wilmington because of a rape a few years ago, which compounded their already existing post-traumatic stress disorder from prior abuse. As a result, they still live in an abusive home. The student, who did not report their rape to the university, added:
“I became completely debilitated in life. I didn’t press charges, I just dropped out of everything and hid myself away. At this point it wasn’t just me living with the trauma – it was me living a life where I could no longer go to school or work full-time and having to move because I can't even be in the same city as my rapist. Even with therapy, there are very ugly symptoms that I now have to live with like having a breakdown in public every time I see a guy who vaguely looks like my rapist or having a flashback in the middle of hanging out with my friends and becoming inconsolable.”
They also described some of the other consequences:
“It’s so much more than just living with the traumatic event itself, you have to live with people asking you why you didn't report, why you didn’t tell anyone, why you decided to drink that night, why this, why that. As a rape victim, every choice I made that night will be picked apart and analyzed in a way that doesn't happen to a victim of any other crime besides rape. Nobody except rape victims have to apologize for the rest of their lives for having a crime committed against them like we do.”
I doubt anyone falsely (or accurately) accused of rape has suffered to this degree because of it. And even if they have, there are far fewer people falsely accused of rape and sexual assault than there are survivors – especially since both are so underreported. If 10% are reported, and 8% of those accused are innocent, then for every one person falsely accused, 10 are accurately accused, and 89 perpetrators go entirely unreported. I certainly have no desire to see innocent people accused of sexual assault, but that is a far less common problem than leaving suffering unacknowledged. I interviewed 5 people for this piece, and not a single one saw disciplinary measures taken against the person who assaulted them.
I sincerely hope Sec. DeVos and Asst. Sec. Jackson don’t rescind the Dear Colleague letter. Even if it’s flawed – and I don't think it is – it's all we have.