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New York, NY – Taylor Moore, a 20-year-old college student from Arkansas, wants to be able to attend class, stay in the dorms, or go to the school’s library without having to encounter the student who sexually assaulted her – rights US anti-gender discrimination laws, known as Title IX, are supposed to protect.
Schools receiving federal funds – this essentially includes all of the about 5,000 US colleges – must protect the rights of those who have been sexually assaulted or harassed. But what they need to do to adequately protect those students has long been a subject of debate.
Betsy DeVos, the US secretary of education, has vowed to overhaul guidelines introduced by the Obama administration in 2011. Survivors of sexual assault had hailed those guidelines for making it easier for those who had been sexually assaulted to come forward and get on-campus justice, which is unrelated to criminal prosecution. But others have derided the guidelines as trampling on the rights of accused students.
The effects of sexual assault are profound, Moore told Al Jazeera.
“[My attacker] saw me naked, he touched my naked body,” she said, adding, of the possibility of seeing her assailant, “it makes me feel small and very insecure and just violated all over again.”
The Obama administration guidelines were introduced after decades of surveys continually found that about one in five women is sexually assaulted while in college. They also accompanied a gradual shift in social awareness about what constitutes rape and sexual assault to include psychological coercion, exemplified by the FBI’s 2012 removal of the word “force” from its definition of rape.
“It was so hard to come forward with what happened to me and actually tell somebody,” said Moore, “but I knew that something would be done under the guidelines.”
DeVos, in a speech at George Mason University in early September, promised to protect the rights of sexual assault survivors, as well as other students. But, she said, the accused are being mistreated in campus “kangaroo courts” under the current guidelines.
“One rape is one too many. One assault is one too many,” she said, later adding, “one person denied due process is one too many.”
During the speech, DeVos had referenced Moore’s own story: In a dorm room at Southern Arkansas University, Moore’s boyfriend’s roommate, naked, tried to force himself on her. It was during finals in Moore’s first semester at the school. Her boyfriend looked on, in apparent support of the attack.
Moore had met DeVos, along with several other survivors, in July. She told her about the attack and her school’s inadequate response.
DeVos’s words and actions were conflicting, Moore said.
“It meant a lot that in her speech [DeVos] talked about my story because that reassured me and lets me know that she was listening,” said Moore. “But her rescinding of the guidelines, it doesn’t send a good message to survivors. It doesn’t make me feel very safe on my campus.”
The ‘battle’ of coming forward
While the vast majority of sexual assaults are not reported, the number of recorded incidents on college campuses jumped from 4,000 in 2012 to 5,000 in 2013, a 2016 report by the National Center for Education Statistics showed. Many survivor advocates believe more people were willing to come forward after the guidelines were released.
Carly Mee, a lawyer with the survivors’ rights group, SurvJustice, which also represented Moore, said the guidelines, while only technically a clarification of current laws, had a thawing effect for those who were dealing with the trauma of campus sexual assault. Any guidelines that are less firm, or an administration that seems less likely to enforce them, could change that, she said.
“It gave survivors a tool to bring to schools that says ‘Hey, this really clearly says what you need to be doing, and you’re not doing it,'” Mee said.
If criteria in the guidelines were not met, federal funds could be withheld from schools, and furthermore, the Department of Education’s Office for Civil Rights would investigate complaints that a school was not following the guidelines and publish a public list of schools being investigated.
Most importantly, said Mee, who was sexually assaulted during her first week of college in California in 2009, the guidelines made survivors feel like they would not be fighting for their civil rights alone. Mee said she was left traumatised and confused after she was attacked because it was different from the “stranger in the bushes” narrative of rape she had been warned about.
“It’s such a battle to think about. Is it even worth coming forward? Is anything actually going to come of this? Am I going to be dragged through the mud by the accused student?” she said. “The dear colleague letter made it so survivors didn’t have to carve out that [civil rights] space any more, it was already there, and they just had to take that tool and bring it forward.”
Overcorrecting the problem?
The Obama era guidelines were quickly criticised, including by professors of law and academic professionals. The guidelines required schools to use a preponderance of evidence standard when deciding if an attack occurred. This meant over 50 percent of the evidence must indicate an individual committed the assault – a standard lower than in criminal proceedings, but the same as those used in civil rights cases.
But without the protections available in civil court – the ability to subpoena evidence and witnesses and conduct cross-examination, along with the investigative limitations of school fact finders – the accused are denied due process, argues Joe Cohn of the Foundation for Individual Rights in Education, a group to which DeVos’s family’s foundation has previously donated money.
“Even with a fact-finder who felt that it was 49.9 percent likely that the person really didn’t do it, the school was still obligated to punish,” said Cohn. “Even with that massive amount of doubt.”
Critics like Cohn say schools also feared both public shaming and the loss of funding, which, when coupled with “messaging that only one side of the issue mattered”, led many schools to overcorrect for the problem. On top of biases in the process, some schools unreasonably broadened the definitions of sexual assault and harassment in their policies, he said.
“It set up an environment where institutions were trying to stay clear of the bad publicity and trying to stay clear of federal enforcement,” said Cohn, “because no one wants to be on the front fold of the newspaper, basically being accused of harboring rapists, so it really skewed the process [towards those making the allegations].”
A database kept by the group, Title IX for All, has tracked 170 lawsuits filed by students accused of campus sexual misconduct who believe their civil rights were denied. The vast majority of the cases were filed after 2011.
In one Virginia lawsuit, a student expelled from Washington and Lee University charged that the school had displayed a gender bias in determining that he had assaulted a female student. In another case in Massachusetts, a student alleged that Amherst College investigators did not fully investigate evidence that indicated the alleged assault was consensual, according to local reports.
In both cases, federal judges allowed the cases to proceed, but they settled out of court.
Justin Dillon, a lawyer who represents accused students, said cases like these exemplify a system that encourages schools to sacrifice the rights of the accused to appear tough on sexual assault.
“Being falsely accused of rape takes an absolutely enormous and life-changing effect on your life. It can ruin your life. I’ve seen it happen,” said Dillon, who has represented students at about 60 colleges.
Survivor advocates, however, say critics are overstating the prevalence of false sexual assault reports. Studies put the rate of those reports at between two to 10 percent, but even those figures are “inflated” due to “inconsistent definitions and protocols, or a weak understanding of sexual assault”, one report showed.
Under a spectre of sexual assault
DeVos has not yet announced any new Title IX guidelines, but said she would open up a “notice-and-comment” period as they are decided. The process, which is meant to allow public feedback and is standard when an agency changes rules that affect the bodies it governs, was not followed before the Obama administration announced their guidelines in 2011.
Four prominent survivor groups told Al Jazeera they are only aware of the administration meeting with survivor organisations once, while also meeting with a controversial men’s rights group. They said no future meetings are planned, and there has been no further communication with the administration.
The Department of Education contested those claims in a statement to Al Jazeera. “The Secretary, as well as her team in the office for Civil Rights, have met many times with sexual assault survivors and the groups that represent them, those who have been falsely accused under Title IX, and university presidents, general counsels and others who are charged with enforcing Title IX on their campuses,” said Liz Hill, the press secretary for the department. “Those conversations started before the [July] Title IX summit and continued after.”
The department did not immediately provide further details on those meetings.
The administration remains under the spectre of Donald Trump’s comments about sexual assault. Survivors say they are also concerned with a June internal memo issued by Candice Jackson, who heads the Department of Education’s Office for Civil Rights, which advised federal investigators to no longer probe systemic patterns of discrimination at colleges.
Jackson, herself a rape survivor, in a July interview with the New York Times, said that “90 percent” of college sexual assault reports fall into the category of regrets after a breakup or drunken encounter. She later apologised for the comments, but survivors fear that flippant attitude pervades the administration – and will be reflected in new guidelines.
“I think it really shows what’s behind their actions here, honestly,” said Neena Chaudhry, senior council at the National Women’s Law Center. “It perpetuates all these rape myths about women and girls and people who are coming forward.”
Survivors groups have called for mobilisations across campuses, urging students to write letters to their administrators in support of the current guidelines. For Moore’s part, she has since transferred schools and is pursuing a nursing degree. She hopes to have another chance to talk to DeVos soon.
“I think the answer lies with colleges, not with changing the guidelines,” she said. “If they do the processes the right way the first time, it doesn’t violate anyone’s rights, the accused or the survivor.”
“I feel like if there was another meeting, and I got to voice my opinion about that, then it would make me feel a lot better,” Moore added, “because I know [DeVos] listened to my story the first time, so I think that she would listen to my opinion again.”