The U.S Department of Education recently announced new changes in how colleges are to handle sexual assault and sexual harassment complaints.
These changes to Title IX, the federal regulation on college gender discrimination and sexual misconduct, will take effect on August 14, 2020.
Although the new revisions, called the “Final Rule,” attempt to make processes fair and unbiased for all parties involved in a sexual harassment or sexual assault claim, there is resistance against them. Advocates complain that these regulations seemingly provide more protection for the accused students and employees rather than the victims.
New Changes to Title IX
According to Betsy DeVos, the secretary of education, the new changes strive to ensure due process rights for both students reporting sexual misconduct and those accused.
The changes decrease the number of complaints colleges will be required to investigate by limiting investigations to only for extremely severe behavior.
Several provisions introduced include the following changes:
- Colleges have some leeway in choosing what violates campus policy. Previously, colleges were instructed to use a “preponderance of evidence” in cases of accused sexual assault, which would assume that the assault was more likely than not, but Final Rule changes give institutions the option of requiring “clear and convincing” evidence to prove a claim;
- More involvement is now required than the previously accepted single investigator. This ensures that a hearing takes place before an outcome is decided;
- Colleges are expected to investigate those off-campus sexual misconducts that take place in college-owned buildings or college-sponsored trips. These can sometimes include fraternity houses if they are recognized as such by the institution itself;
- Live hearings and cross-examinations in sexual misconduct cases is now allowed. Students will not be able to cross-examine each other personally, and colleges will have to ensure that both parties have an adviser; and
- Sexual harassment is specifically defined to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex.
There is a lot of controversy around these new rules and how they will be implemented when they officially go into effect on August 14, 2020.
The changes made to Title IX mean that victims of potential sexual misconduct may risk not being given the justice they deserve. This is simply because they do not meet the new definition of sexual misconduct, which is narrower and can only be investigated in severe cases.
The U.S Department of Education introduced these rules in order to seek equality for all students and to ensure that accused parties are presumed innocent until proven guilty. Since the Obama administration put pressure on colleges to crack down on sexual misconduct cases in 2011, there have been a slew of civil lawsuits filed by students accused of sexual misconduct claiming their cases were unjustly handled.
The rules also gives both parties in a Title IX proceeding the right to appeal.
The changes appear designed to limit or discourage sexual misconduct claims.
It can be very traumatic for a victim of sexual assault to come forward. Under these new regulations, victims would have to relive these traumas under cross-examinations from their attackers’ representatives. Furthermore, the regulations that have been introduced will allow colleges to require a higher level of evidence, making it more difficult for victims to succeed.
The cross-examination element of the case is something that was discouraged by the Obama administration for fear that it could dissuade victims from coming forward. Critics of the new rules also point out that some victims might not be able to afford a lawyer, meaning that potentially, guilty individuals with enough money to hire a lawyer could have an advantage over victims.
The Reality of Sexual Assault Reporting
Sexual assault cases are historically underreported for fear of repercussions.
Of note, the number of false accusations is in reality extremely low, somewhere between 2% and 10%, according to the National Sexual Violence Resource Center. Additionally, they note that these numbers are almost certainly inflated due to inconsistent definitions and regulations—for example, labeling a claim as “false” due to lack of sufficient evidence instead of necessarily being proven untrue.
The balance between giving every individual presumed innocence until proven guilty and giving justice to victims of hard-to-prove sexual misconduct crimes will always be difficult. But despite these new changes to Title IX, sexual assault victims do have legal options should they wish to come forward.
For a free, confidential consultation with an experienced civil litigation attorney, contact Napoli Shkolnik PLLC.