Ever since The New York Times and The New Yorker published the accounts of dozens of women accusing Harvey Weinstein of sexual harassment and assault, the social and political tides seem to be turning. More women (and a few men) have spoken out against Hollywood and media luminaries, business giants and, most recently, Alabama Senate candidate Roy Moore.
Now, the conversation should turn against Secretary of Education Betsy DeVos’s gutting of campus sexual assault procedures.
DeVos has rejected Obama-era guidelines on how colleges investigate sexual assault, saying that the rights of the accused were being violated and that schools will be permitted to use whatever standard of proof they deem fair while the Department of Education (DOE) sorts out new guidelines.
To make matters more confusing, a footnote in DOE’s recommendations added that the standard of evidence for sexual allegations should be consistent with whatever standard the school uses in other student misconduct cases. Left unexplained, because it makes no sense, is why sexual assault should be treated the same as, say, plagiarism − which comes with written evidence and no traumatised young victim. (The DOE did not respond to a request for comment on the guidelines.)
Sexual assault on college campuses is a long-standing scourge: nearly one in five women will be sexually assaulted while in college. It’s also a complex crime to combat, happening, as it does, under special circumstances: In an environment where both alleged victim and alleged perpetrator may both be living and studying on a self-contained campus where conflicts and even criminal behavior is often mediated by the school rather than law enforcement.
The way colleges and universities handle sexual assault complaints has long been inadequate, with female victims of assault often disadvantaged by an institution that has an incentive to sweep assault under the rug. (The parents of a prospective applicant surely don’t want to hear that a school has a rape problem.) As a result, many assault victims, forced to go through meaningless mediation processes or stay in classes and dorms with their assailants, dropped out (or failed out because of post-traumatic stress disorder), curtailing their college careers and hampering their own futures, while their assailants were able to graduate and continue on as if nothing happened.
In 2011 the Obama administration’s DOE issued guidelines to put the accused and the accuser on more equal footing. The guidelines, outlined in a “Dear Colleague” letter, encouraged schools adjudicating sexual assault to use a “preponderance of the evidence” standard in determining fault – that is, is it more likely than not that the accused committed the act in question?
This is a lower burden of proof than in criminal cases, where the stakes – jail time and the attendant curtailing of one’s liberties – are much higher. It’s also a lower burden of proof than the “clear and convincing evidence” standard, which is used in some civil cases.
But “preponderance of the evidence” is the standard used in civil cases involving sex and race discrimination. The reason colleges are adjudicating sexual assault cases in the first place is because of Title IX, a federal anti-discrimination statute dictating that women should have equal access to education. Sexual assault impedes equal access, making it a Title IX discrimination issue, so the standard of evidence often used in civil discrimination cases is appropriate.
This has not gone over well with men’s rights activists, many conservatives, and some advocates for the rights of the accused. For some, the evidentiary standard itself is too low; opinions of what should be used instead vary from none at all (the argument being that colleges should avoid this entirely and require any reports of assault to go to the police) to a “clear and convincing” standard, which is a higher bar than preponderance of the evidence. Others, including me, believe the evidentiary standard is not the problem but are troubled that the adjudication processes vary wildly from school to school, and are often opaque, incomprehensible, and done without clear rules of evidence and the right of each party to have an advocate. In any case, for many conservatives, the whole system is unfairly skewed. For many feminists, the Obama rules were a step in the right direction, but are being implemented poorly.
Enter DeVos, who early in her tenure invited men’s rights groups to meet with her to discuss the issue. These are such vicious misogynists that one of their leaders said about NFL player Ray Rice’s then-fiancé, whom he attacked on camera in an elevator and knocked unconscious, “if she hadn’t aggravated him, she wouldn’t have been hit.” Candice E. Jackson, one of DeVos’s top deputies, told The New York Times that sexual assault “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 [the victim] just decided that our last sleeping together was not quite right.’” Let’s also not forget that DeVos serves in an administration headed by Donald Trump, who has boasted of grabbing women’s genitals.
So it was no surprise that DeVos is overturning the Obama-era directives. This is the worst possible approach. Even though there was roiling debate over which standard to use, everyone agreed that lack of clarity on rules was an ongoing issue. The DeVos directive muddied the waters even further.
But in the wake of Weinstein, we see why this matters – and why simply turning this matter over to law enforcement is not a viable option. Many of the women who say Weinstein harassed or assaulted them would not be able to prove it in a court of law, given that physical evidence was limited or non-existent, and the case would come down to her version of events versus his. Even when police did have evidence in the form of audio recordings wherein Weinstein admitted to criminal misdeeds, the district attorney chose not to prosecute. For women in Hollywood, making a powerful enemy while being powerless to fight back meant stalled careers and emotional distress. For women on college campuses, having an assault go ignored can mean everything they have worked for up until that point in their lives is lost: Their degree, their social and prospective professional network and their sense of safety in their own homes and communities.
Research on sexual assailants is disturbingly limited, but we do know that many campus attackers are, like Weinstein, serial offenders. And we know that, like Weinstein, they target the most vulnerable – women who are new on campus and don’t have a strong social network, and women of lower socioeconomic classes who are considered more disposable than the women who are considered a frat boy’s social and economic peers.
On campuses across the United States, women make the same calculation as Weinstein’s accusers did when they kept silent for years. What will I have to go through to prove what happened to me? What do I stand to lose – my reputation, my friends, my dignity, my future?
When women don’t see a fair path to justice, they don’t report assaults. Most rapes still go unreported, on campus and off of it, often because women are ashamed and afraid of being disbelieved. DeVos is making this already-tough road even steeper. If there’s one thing we’ve learned from the Weinstein case, it’s that the last thing victims need are more barriers blocking their way.