Friday, September 29, 2023

Feds withdraw sexual assault investigation rules


US Education Secretary Betsy DeVos announced earlier this month that the US would rescind 2011 guidance from the Obama administration about how college campuses investigate accusations of sexual assault, the New York Times reports. In practice, the move won’t change much on campuses across America, though, the Chronicle of Higher Education observed.

Ms DeVos spoke at George Mason University and officially suspended the guidance from the Obama administration that told schools that receive federal funds, including universities and K-12 schools, that they should lower the standard of proof required in sexual assault cases.

Schools were told to use a “preponderance of the evidence” standard of proof when finding students guilty of sexual assault. The original guidance was intended to ease the burden on victims, who could then avoid reporting any sexual assault to the police or other law enforcement officials and thus spare themselves the embarrassment of testifying in open court.

But while the Obama administration guidance certainly did that, it also assigned the investigation of sexual assault to ad hoc tribunals or even lone administrators at colleges and universities. The accused people often weren’t able to present evidence or secure a lawyer to accompany them at “trials” where their opportunities to get an education could be taken away. Even at schools where students were allowed to present evidence, the hearings often happened so quickly that students were completely unprepared. Furthermore, in most cases, they were not allowed to cross examine witnesses or call their own witnesses.

The entire setup flies in the face of due process in the name of making it easier on victims to get sexual predators out of their lives.

But everybody from staunch conservatives to the most progressive liberals and feminists was having a problem with the short-circuiting of due process that was happening at these hearings.

Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen are four feminist legal scholars at Harvard Law School. They wrote a letter to the US Education Department last month claiming that many college administrators, fearful of losing funding, had “over-complied” with the original directive.

Colleges have adopted definitions of sexual wrongdoing, they wrote, that include “conduct that is merely unwelcome … even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter.” At the same time, “the procedures for enforcing these definitions are frequently so unfair as to be truly shocking.”

This is not to say college students aren’t victimized by sexual predators or criminals. Nor are they exempt from victimization in sexual assault. More than 11 percent of all students and 23 percent of female undergraduates experience rape or sexual assault, according to the Rape, Abuse and Incest National Network. Two-thirds of all episodes of sexual violence are unreported, in part because victims seek not to “relive” the episodes at an open trial. Even when they do report it, fewer than 1 percent of rape trials end in a felony conviction.

But this is exactly the point. Not many rape trials end in a felony conviction, because many of them don’t rise to the level of a “crime.” Unwanted attention isn’t a crime, and sexual assault, a horrible, violent crime that it is, needs to be investigated by police. Schools and college administrators are not trained to handle criminal investigations.

Then, however, “No crime should treat the accused as guilty until proven innocent, but those who criticize DeVos simultaneously want the Trump administration to be able to determine what crimes warrant this special status of proving innocence,” writes the editorial board for the Indiana Daily Student, the student newspaper at Indiana University, Bloomington.

“Giving the government the power to suspend due process for any reason weakens the civil liberties of all Americans. Public universities need to treat those accused of sexual assault with the same presumption of innocence as those accused in courts.”


In many ways, the original guidance left me wanting justice. It is why we in America need a strong conservative voice in Washington, from the White House to Congress to the Education Department. Liberals will run amok if not engaged in civil conversations and debate with conservative minds, none of which can be found in Washington at the moment. But here’s hope.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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