Proposed changes to regulations on campus sexual misconduct in the US are a backward step in the fight against sexual violence and risk turning universities into courtrooms, according to observers.
The planned Title IX rules, which were obtained by The New York Times, would narrow the definition of sexual harassment and hold universities accountable only for formal complaints and for conduct said to have occurred on their campuses.
Universities would also be able to choose the “evidentiary standard” – “preponderance of evidence” or “clear and convincing” evidence – to apply in determining whether accused students are responsible for alleged misconduct, and decide whether to have an appeals process.
Unlike the Obama administration’s guidelines – which ruled that mediation was not appropriate and told institutions to use the lower “preponderance of evidence” standard and to provide an appeals process – the new rules from the Department of Education would have the force of law and can be implemented without an act of Congress, after a public comment period, according to the newspaper.
Jennifer Doyle, professor of English at the University of California, Riverside and author of the 2015 book Campus Sex, Campus Security, described the Obama-era guidelines as “balanced and fair”. She said that she was “wary of any policy that imagines that the university – which is itself an interested party – has the capacity to stage something like a criminal trial”.
The proposed changes would allow victims and their alleged assailants to request evidence from each other and to cross-examine each other.
“That kind of direct, adversarial interrogation is a feature of the courtroom – in which a judge enforces a set of rules governing just how that kind of questioning should be conducted,” Professor Doyle said. “University administrations are not neutral parties – there is a range of ways in which parties can interact with each other and with each other’s evidence.”
Jess Davidson, executive director of End Rape on Campus, a survivor advocacy organisation, said that the changes were “a tacit endorsement of making campuses a safer place to commit sexual assault, rather than a safer place to learn free from violence”.
“To require that assaults take place on campus in order to be investigated will shut out thousands of survivors who are assaulted off-campus. To allow campuses to determine their own standard of evidence and whether or not to provide an appeals process is wilfully ignorant, and will go back to a time when rape on campus was swept under the rug. To let survivors be cross-examined by a person who has violated them is downright cruel,” she said.
Janet Napolitano, president of the University of California, said that the changes would “undo six years’ worth of federal enforcement designed to strengthen sexual violence protections on college campuses”.
But Meg Mott, professor of political theory at Marlboro College in Vermont, said that the proposed changes “offer better support for victims of sexual assault”.
The old guidelines “put enormous pressure on administrators to adopt zero tolerance for cases of sexual harassment and sexual misconduct”, which meant that “fewer college students wish to speak about ambiguous sexual encounters because they do not want the machinery of Title IX to render them into traumatised victims and their peer into a sexual predator”, she said.
“Under mandatory reporting, lower standards of evidence, and bans on mediation, victims were denied options to resolve the issue and opportunities to directly confront the accused.”