Members of Congress can't let Education Secretary Betsy DeVos off easy when she testifies Thursday about her department's new budget request. They must use this opportunity to interrogate her about her planned changes to sexual harassment rules on college campuses.
DeVos is advancing profound alterations to the application of Title IX, the federal law that prohibits educational institutions that received federal funding from engaging in sex-based discrimination, which federal courts and agencies uniformly agree covers sexual harassment and sexual violence. The rule changes, which are expected to be announced any day, would affect how the Education Department would handle complaints and would direct institutions on meeting Title IX's mandate.
The draft, which is publicly available, would involve sweeping revisions that would make it harder for victims to report and receive relief after sexual harassment and violent incidents. The guidelines disregard compelling public policy and safety concerns and defy key statistical facts, which is why it's so important that DeVos' appearance before Congress includes a challenge of her plans.
The claimed justification for this vast shift is that more must be done to ensure the due process rights of those who might be falsely accused of sexual violence or harassment. But there is no rash of false sexual misconduct accusations across campuses, while there is an epidemic of sexual violence. That's what the Education Department should be tackling, but its new rules would do nothing to combat the problem and, in fact, would only be likely to exacerbate it.
Despite high-profile accounts of false accusations about sexual misdeeds, these cases receive outsize attention to their frequency. The rate of false sex crime reports is not appreciably higher than for any other crime — and it is likely lower when accounting for the fact that the majority of sex crimes are never reported. Asserting otherwise means unfairly classifying as "false” those complaints that simply cannot overcome the criminal burden of proof because of a lack of witnesses and physical evidence.
Indeed, false reporting is the exception, not the rule. Such reporting of sexual crimes is estimated to occur in 2 percent to 10 percent of all cases. One frequently cited comprehensive study found an overall "false" reporting rate for all crimes of about 1.16 percent, although it conflates fake reports with ones that were merely baseless. According to the study, false reports of robbery were actually slightly more common than rape, at 5 percent, and murder came in at 3.3 percent. Furthermore, despite being immersed in these cases as a lawyer dealing with sexual assault case, I have seen no data showing that large numbers of those falsely accused are suffering penalties before the falsehood is discovered under existing due process procedures.
By contrast, sexual violence is prevalent in our society, particularly at college. With the incidence of rape on campus as high as 20 percent for women and 15 percent for men, a student is far more likely to be raped than falsely accused of rape. And that is the scourge that needs attention; sexual violence has actually increased during DeVos' tenure, by 3 percent for undergraduate females and 1.4 percent for undergraduate males.
The true numbers may actually be much higher, as underreporting remains a fundamental problem inhibiting identification of perpetrators so they can be stopped before they hurt other victims. Self-blame, lack of faith in resources and a belief that complaints will not be taken seriously continue to be reasons survivors do not report. Nothing in DeVos' rule changes would address those problems.
To the contrary, the revisions would make the complaint process harder and more intimidating for survivors, discouraging reporting. One example is the plan to shift the burden of proof in college disciplinary proceedings against perpetrators from a "preponderance of the evidence” (meaning that those judging the incident must assess that at least 50 percent of the evidence demonstrates guilt) to the higher "clear and convincing standard.” While the draft rules claim schools can choose which standard to adopt, they would compel use of the higher standard if an institution uses any other type of complaint against students or employees in other discipline cases.
Another change would give the accused access to all the evidence obtained in campus investigations, even if the school "does not intend to rely” on it in presenting its case. This could give the accused access to their victims' private sexual and dating histories, medical records and other matters that have no bearing on proof of wrongdoing. Furthermore, the "advisor of their choice” for the accused could be any peer, thus giving that private information to yet another student.
Even in criminal courts, the accused do not get that information. And laws such as HIPAA, which mandates confidentiality for medical information, conflict with it. Given the privacy concerns of most sexual violence survivors, that risk would persuade many not to report at all, a fact the Justice Department recognized years ago.
Another change likely to discourage victims from testifying about attacks would allow the "advisor” or lawyer for the accused to cross-examine the victim at disciplinary hearings, with the perpetrator being able to see and hear the victim at all times. Requiring testimony in the immediate presence of the perpetrator can severely traumatize the victim and can be as traumatic to the survivor as the original attack. Courts have long recognized this. It is cruel to require this as a condition for restoring safety on a campus.
A final change that would do more to protect the wrongdoer than the victim is one that would narrow the definition of the sexual harassment that qualifies for Title IX protection. The current definition is "unwelcome conduct of a sexual nature.” DeVos' new definition would apply only to acts that involve a quid pro quo demand for sexual favors in return for things such as a good grade or are "so severe, pervasive and objectively offensive that it effectively deprives a person of equal access to educational programs or activities,” i.e., compels them to leave campus.
This definition excludes much sexual misconduct, permitting many harmful sexual acts that cannot be said to literally drive the survivor out of the institution. Title IX jurisprudence already allows confirmed rapists to stay on campus in many cases, despite the injustice and the risk to the student body that the perpetrator will re-offend.
Should these even laxer rules go into effect, it will be a scary time in America for young students who find themselves sharing campus with predators because their last victims could not meet the new, higher burden of proof or were afraid to give up their privacy or dignity to try to expose their crimes. It's not "reform.” It's a purposeful effort to roll back the improvements that have been made over decades to protect victims and offer them justice under federal law.
- Michael Dolce, a survivor of child sex abuse, is a litigation lawyer at Cohen Milstein Sellers & Toll PLLC. He leads the firm's sexual abuse, sex trafficking and domestic violence team.
This piece was first published by NBC Think.
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