Proposed US rules on sexual assault investigations ‘aid accused’

New regulations outlined by Trump officials would hand stronger rights in some areas to those facing sexual misconduct complaints on college campuses

November 16, 2018
Donald Trump standing with Betsy DeVos
Source: Alamy
Donald Trump standing with Betsy DeVos

The Trump administration has formally outlined a series of changes to how US universities should handle sexual assault allegations, a shift raising protests from both rights activists and sector leaders.

Key points of the changes would allow campuses to set higher bars for affirming complaints of sexual harassment and assault, give the accused a right to indirectly question accusers, and reduce their institutional liability.

The coming revisions also would limit institutional authority to investigate campus-related events, give institutions more flexibility in crafting solutions to help the victim, and let the accuser as well as the accused appeal an adverse ruling.

The changes are aimed at providing “clear policies and fair processes that every student can rely on”, education secretary Betsy DeVos said in a statement. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process,” she said.

The federal government has the authority to set such rules under its power to withhold federal student aid eligibility from institutions that do not comply. Federal rules dating to 1972 forbid sex-based discrimination at such institutions and require them to act on complaints they receive. The revisions proposed by Ms DeVos now must pass through a two-month period of formal public consultation before they take effect.

As the outline of the administration’s intentions became public knowledge in recent weeks, some experts inside and outside higher education described certain provisions – including giving those accused a right to pose questions, and setting a tougher standard for judging their guilt – as threats to victims’ rights.

The American Council on Education, the umbrella organisation for US higher education, said that the rules around a complex and emotional process needed to be clarified, and said that it supported the suggestion in the new rules of mediation as another option that can be offered in cases of sexual harassment or abuse.

But an ACE official said that the idea of a “live hearing” with “cross-examination” of the accuser sounded far too legalistic for an on-campus format intended to put a sexual assault victim at ease.

“This apparently would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing,” said Terry Hartle, ACE’s senior vice president for government and public affairs.

The new rules, however, do continue to allow some flexibility in campus adjudication processes, and even some help for victims. One aspect of the DeVos plan would let either side appeal an adverse ruling, and not just the accused.

The DeVos plan also would clearly overturn informal guidance offered in the Obama administration that directed institutions to look for a “preponderance of the evidence” in assessing a claim. The DeVos plan would allow a higher bar of “clear and convincing” evidence.

And the guidelines call on institutions to consider a wider range of responses to complaints, including supportive measures that some victims have sought, such as schedule changes or housing reassignments.

Other changes described by Ms DeVos seem more clearly helpful to the accused. One would give the accused the right to cross-examine accusers. The questioning, however, would have to be done by a third party, such as an attorney, and could not involve questions about an accuser’s sexual history.

The DeVos plan also would tighten the broad Obama administration definition of sexual harassment as “unwelcome conduct of a sexual nature”. The DeVos language would limit that definition to a college employee conditioning a benefit on sexual conduct; a criminal act of sexual assault; or unwelcome sexual conduct that denies an educational benefit and that is also “severe, pervasive and objectively offensive”.

The new administration language also would require a complaint to be filed with a specific office – such as a sexual harassment complaint coordinator – in order for the college to be considered formally aware of the complaint. It also would require the incident to have occurred on campus or in a university-sanctioned activity, thereby ruling out events such as off-campus parties.

Some activists believe colleges have no business handling any sexual assault allegations, regardless of location, given the history of incidents in which colleges have failed to respond appropriately. Just this week, seven current and former students at Dartmouth College filed a suit against the institution detailing a long-running culture of sexual abuse by their psychology professors that dated back as far as 2002.

Denise Krepp, an attorney who said she was fired after she tried to pursue a long-running sexual abuse scandal at the US Merchant Marine Academy, said Ms DeVos is making the mistake of “building on a system that shouldn’t exist”.

“We don’t let colleges adjudicate murders,” Ms Krepp said. “Why are we telling them to adjudicate rape cases?”

But federal rules only set out on-campus processes as a more comfortable option, not a requirement, for any victim who would prefer to go straight to the police, Mr Hartle said. “Our goal”, he said of universities, “is to support the survivor and to be fair to both parties.”

paul.basken@timeshighereducation.com

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