New draft federal rules on how educational institutions are to investigate allegations of sexual assault were announced Friday, and it seems U.S. Education Secretary Betsy DeVos is following the lead of President Donald Trump by bolstering policies to provide additional protections for the accused.
The rules, which have been anticipated since guidelines developed by the Obama administration were scrapped by DeVos last year, will be the nation’s first codified requirements on how schools meet the legal obligations of Title IX — the 1972 law prohibiting sex discrimination in programs receiving federal funding.
Before the initial Obama-era guidelines, the situation on campuses throughout the country was dire. Colleges and universities did not want to report incidents of sexual misconduct, especially incidents of rape and sexual assault. Students were actively discouraged from filing complaints and, when they did, cases rarely were investigated. The guidelines were a reaction to this unacceptable landscape, and included broad protections for students experiencing sexual misconduct, harassment and assault.
The federal government, under DeVos’ direction, now wants to swing the pendulum of public policy in the opposite direction by providing far more protections to accused perpetrators of sexual misconduct and the institutions that have historically been complicit in covering up assaults. If the new rules are implemented as written, the federal government will completely write off some unacceptable behavior.
If adopted, the rules would require postsecondary schools to hold live hearings, conducted by a neutral decision-maker, with a presumption of innocence. In other words, the burden of proof would be on the student filing the grievance. Accused perpetrators and victims of sexual assault would be allowed to cross-examine one another through a third party, such as an attorney. This regulation is particularly troublesome because it introduces the specter of inequality. That is, if the accused is affluent and therefore capable of hiring an attack-dog prosecutor, the victim could be placed at a disadvantage. The only nod provided to victims is “rape shield” protection, which would prohibit the introduction of past sexual history.
And, sexual harassment has been redefined as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Under that standard, it is unlikely a student repeatedly and inappropriately touching others could be held accountable for sexual harassment, because such activity wouldn’t rise to the necessary threshold of denying another person access.
Finally, complaints are valid only if formally received by certain school personnel, those with authority to “institute corrective measures,” and institutions are not required to investigate incidents that occur off-campus.
“The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported,” the ACLU noted. “It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.”
Just how prevalent is sexual misconduct on Iowa campuses? According to a 2015 survey of Iowa State University students by the Association of American Universities, roughly 1 out of every 10 students, male and female, have experienced some form of sexual misconduct. ISU was chosen as one of 27 schools included in the national survey because, in 2010, it had more reports of sexual assault than any other school in the Big 12.
Among female undergraduates included in the survey, 19.3 percent had been victims of sexual assault involving either nonconsensual penetration or sexual touching since coming to campus, and 11.1 percent had experienced these types of assault during the same school year as the survey.
A campus climate survey released in April found 11 percent of students had experienced some form of unwanted sexual behavior while attending ISU. Of those incidents, which ranged from catcalling to relationship violence to unwanted penetration, the survey found very few victims reported. Looking only at students who experienced unwanted sexual touching, including assault and rape, only 10 percent reported and, of that 10 percent, only half were satisfied with the outcome.
Earlier this year — after paying a court settlement to a female student, raped at a fraternity house in 2015, who charged the school did not protect her from retaliation — ISU implemented changes to its sexual assault policies in hopes of changing the culture on campus, and has hired a new Title IX investigator while conducting interviews for five more positions. The university also is one of 33 schools participating in a follow-up AAU survey on sexual assault and misconduct.
But the issue isn’t limited to ISU. All Iowa campuses are working to combat incidences of sexual assault. National statistics indicate about a quarter of all female students will experience some sort of unwanted sexual misconduct while in college — and far too few will report the incident due to fear of retaliation or of not being believed.
Even before DeVos’ proposed rule changes, too few Iowa young adults thought they would be believed when they reported a sexual assault.
The public now has 60 days to offer comment on the draft rules. My hope is Iowans take advantage of the opportunity to let the Trump administration know meeting the needs of sexual assault survivors must remain the core mission.
• Comments: @LyndaIowa, (319) 368-8513, email@example.com