New Federal Guidelines For Campus Assault Put Heavy Burden on Victims

College administrators worry a more rigorous process for proving sexual assault could send the wrong message to students.
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Meghan Downey of Chatham, New Jersey protests outside as U.S. Education Secretary Betsy DeVos announces changes in federal policy on rules for investigating sexual assault reports on college campuses in Arlington, Virginia Thursday September 7, 2017.

Photo by J. Lawler Duggan for The Washington Post via Getty Images.

Secretary of Education Betsy DeVos gave colleges and universities a ton of homework the day she announced the Trump administration was rescinding Obama-era sexual assault provisions under Title IX laws and establishing new guidelines for how schools handle such cases.

Investigating allegations of sexual assault on college campuses is a far from perfect process.

DeVos had described the prior administration’s system as having “failed too many students.” Through “intimidation and coercion,” she said, it pushed schools to overreach, and too-often victimized suspects who turned out to be innocent.

Her proposed changes to Title IX laws allow colleges, when weighing evidence for sexual assault complaints, to consider the more rigorous “clear and convincing” standard, rather than a “preponderance of evidence” standard mandated by the Obama administration. DeVos also removed the 60-day countdown for concluding campus investigations, making it possible for sexual assault reviews to go on indefinitely, and she allowed schools to press investigations toward a mediation process, something prohibited under Obama.

But while the Obama system may have drawn criticism from some corners for how it allegedly over-protected victims, those in law enforcement, who for decades have investigated such cases and know what it takes to get a rape conviction, believe this more rigorous standard of proof Devos is proposing puts too heavy a burden on the victim.

Investigating allegations of sexual assault on college campuses is a far from perfect process, and Mississippi State University Title IX Coordinator Brett Harvey is currently wrangling with whether the DeVos decision will complicate things further. He believes most Title IX colleges and universities, like his, will opt to retain the Obama standards, which they have the option of doing, and work to build a more perfect system from there, rather than beginning anew with the Trump rules.

Universities want to be seen as safe places for parents to send their children. 

Universities want to be seen as safe places for parents to send their children. And if there is the possibility that a sexual assault occurred, experts say, they want both students and parents to believe they will thoroughly explore that possibility, while both protecting and giving due credit to the alleged victim’s claims. A step backward to a more rigorous process for proving sexual assault could send the wrong message.

Of the changes Devos proposed, the one toughening the standard of evidence for investigating Title IX cases is likely the most problematic for administrators trying to cultivate a safe environment for students.

Title IX is a civil law, not criminal, which allows campus investigations to use the less rigorous preponderance of evidence standard, described by Harvey as “50 percent plus 1” confidence that a crime happened. If the scales tilt slightly more in favor than not of believing a sexual assault took place, then someone will be found responsible, he said. The clear and convincing standard, which Devos proposes, however, is harder to put a number on.

“If you ask a lawyer what a clear and convincing standard is, they’ll probably tell you something in the neighborhood of 70 percent sure, or 75, maybe even 80 percent sure,” Harvey said.

That standard requires some heavy lifting and is a big reason victims’ advocates are up in arms over what the Trump administration is proposing. In some situations, “preponderance” can close the deal and “clear and convincing” can’t.

“Clear and convincing to you are going to be two entirely different things.”

Even in a day and age when cameras are everywhere, the brunt of campus sexual assault investigations still focus on the main testimony of the two people who were present during the incident. This means that the most important evidence in those cases is often the credibility of the stories each tells.

“So let’s say you have a case where the complainant … tells a very credible story about sexual assault that has no other evidence to substantiate it,” Harvey said. “There is no physical evidence, no texts, and no security footage—no nothing. The respondent tells a story that’s not completely unbelievable, but not really as credible. In that case, if the complainant told a much better story and had no evidence they still might be able to prevail under a preponderance of evidence. In fact, they’d probably have a good shot at it.

“But under a (clear and convincing evidence standard), if you’re thinking 70 or 80 percent, then that complainant may not be able to prevail there,” he said. “This is not some casebook example, however, and you have to take it case-by-case.”

Retired San Diego sergeant and sex-crimes investigations law-enforcement trainer Joanne Archambault said that over the years she found the clear and convincing standard difficult to nail down and patently unreliable.

“Isn’t ‘clear and convincing’ just a matter of interpretation? That right there says we have a problem,” said Archambault, who is also executive officer of End Violence Against Women International.

“How can you be 70 or 80 percent sure in these (non-witnessed) situations? There is no such thing,” she said. “So clear and convincing means what exactly? Clear and convincing to me and clear and convincing to you are going to be two entirely different things, which is why we need to use preponderance.”

Because Title IX is civil law, colleges find themselves in a unique position of applying a criminal proceeding or criminal expectation in a civil process.

“You have to keep in mind what is the actual outcome of that decision,” said Katie Eichele, director of The Aurora Center for Advocacy and Education at the University of Minnesota.

Her organization serves more than 600 clients each year and provides sex-crime prevention training to about 10,000 campus members.

In criminal justice proceedings, she pointed out, the outcome for those responsible can be severe—prison, sex-offender registration, or of the loss of a civil liberty.

“When you think about higher education, the worst outcome is that they would be expelled,” she said. “It is an outcome that is no different than if they got caught cheating.”

The “preponderance” standard, gives an edge to the victim, yes, but that advantage is necessary in a society that still holds unseemly high expectations of its victims.

Accusing someone you know heralds all kinds of trouble for a victim.

In criminal court, a victim’s tattoos, piercings, and behavioral history can all too frequently set a convincing rapist free using the “beyond reasonable doubt,” standard. These biases do not necessarily evaporate when the incident occurs elsewhere, like on a college campus. Introduce alcohol to any campus sexual assault complaint and a casual observer might declare that the victim should have known better than to get drunk. That same onlooker might also somehow proclaim that the assailant, under precisely the same influence, “perhaps could not help himself. His decision was impaired.”

What is clear is that colleges appear conscious of this bias, and few are ready to adopt the Trump standard. Archambault said this has less to do with their cynical eye toward enrollment and more to do with the evolution of American society.

Back in the 1970s, she said, about 80 percent of sex crimes unit cases were perpetuated by strangers, while 20 percent were non-strangers. By the 90s, the numbers had inverted perfectly, with 80 percent of cases perpetuated by non-strangers vs 20 percent strangers.

Familiar assaults, she believed, had always been high—just underreported. What changed things was the feminist movement, and the rape shield laws and victim-protection services that it produced. Sexual assault involving strangers is easy to report, while accusing someone you know heralds all kinds of trouble for a victim, including scrutiny, character attacks and career impact. It is a testament to our maturing society that more women now feel safe enough to report these encounters, she said.

Archambault said, “It looks like we’re not making progress, but we’ve actually come far.”