DeVos proposes reduced burden on universities investigating sexual misconduct, more rights for accused parties

Policies criticized for rolling back important victim protections

Secretary of Education Betsy DeVos proposed new college sexual assault policies on Friday which would increase the rights of those accused of sexual assault and would limit the circumstances surrounding sexual assault in which colleges must act.

DeVos rescinded the Obama administration’s 2011 and 2014 Dear Colleague letters, which stipulated how colleges and universities should combat sexual assault, last September. If finalized, after a 60-day public comment period, the proposed policies would have the effect of law, replacing that earlier guidance.

Accused may be guaranteed right to cross-examine accuser

The proposed policies would guarantee students accused of sexual assault the right to cross-examine their accuser in a live hearing through a third party, such as a lawyer. The parties would be allowed to remain in separate rooms.

Cross-examination rights for the accused would mark a change from the guidelines in the Obama administration’s 2011 Dear Colleague letter, in which the Office of Civil Rights, a subagency of the Department of Education, strongly discouraged cross-examination because of its potential to re-traumatize victims.

End Rape on Campus Interim Executive Director Jess Davidson told The Washington Post that cross-examination would discourage victims from coming forward.

Due-process groups support cross-examination as the most accurate means of establishing the facts of the incident, according to The Washington Post.

Victims’ rights groups and Obama administration officials have denounced the proposed policies as a dangerous rollback of regulations designed to fight sexual assault on college campuses, The New York Times reported.

Standards of certainty may increase

The proposed policies also allow schools to require more certainty of a sexual assault prior to suspending or expelling a student. Schools would be able to use the standard of “clear and convincing evidence” as opposed to only “preponderance of the evidence.” MIT currently uses the latter standard, which simply means “more likely than not,” Sarah Rankin, MIT’s Title IX coordinator, said in an interview with The Tech last May.

Requirements for colleges to investigate incidents may be loosened

The proposed policies limit the circumstances in which colleges would have to take action to only when an incident is reported to “an official with authority to take corrective action,” according to The Washington Post.  

Colleges would only be required to investigate incidents occurring on their campuses or at their programs under the proposed policies. Critics point out that many incidents occur at apartments right off of college campuses and that the proposed policies do not require these to be investigated, according to The Chronicle of Higher Education. This is a change from the Obama-era guidelines.

MIT’s Title IX Office is evaluating the proposal’s potential impact on MIT’s sexual assault policies and currently does not have an update on how it will respond. Therefore, the office was unable to respond to The Tech’s request for comment, Title IX Office Coordinator Sarah Rankin wrote in an email to The Tech yesterday.

MIT offers both confidential and private resources to students who have been victims of sexual assault. Confidential resources cannot report an incident to the Title IX Office and include MIT Mental Health and Counseling, MIT Medical, and Violence Prevention and Response.

Private resources are required to report an incident of sexual misconduct to the Title IX Office for campus safety reasons, though they must consider students’ wishes, according to the Title IX Office’s websites on confidential and private resources.

Private resources include S3, residential life staff, the Committee on Discipline, and staff designated as “responsible employees.” “Responsible employee” is a Title IX term designating a person as being required to report an incident of a student experiencing sexual misconduct to the Title IX office, according to the Title IX Office’s website. At MIT, all staff who are not designated as confidential resources are responsible employees.

Definition of sexual assault may narrow

The proposed policies use a narrower definition of sexual assault than the Obama administration’s guidelines did: “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity.”

The Obama administration’s 2011 Dear Colleague letter defined sexual harassment to be “unwelcome conduct of a sexual nature.” It included “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

Sexual assault on college campuses can be handled by both universities and the criminal justice system. If the victim does not report the assault to the police, the college or university will handle the sexual assault; necessarily, they will proceed differently than courts do. Colleges and universities must follow Title IX, part of a 1972 act requiring institutions that receive federal funding to ensure that no one is discriminated against in accessing their programs on the basis of sex.

“When a student sexually harasses another student, the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program,” the Obama-era Department of Education wrote in the 2011 Dear Colleague letter.

Sexual assault is a crime, but colleges and universities handle civil, not criminal charges. Accused students are found “responsible” or “not responsible,” as opposed to “guilty” or “not guilty.” Being found “responsible” of sexual assault on a college campus and therefore of having violated Title IX is not a criminal charge and cannot result in criminal punitive measures, but does result in suspension or expulsion from college.

Because colleges and universities are not courts, they are not required to follow criminal prosecution rules. Some due process advocacy groups, such as Families Advocating for Campus Equality, say that defendants are denied due process in college sexual assault investigations under the Obama-era guidelines.

One in five female undergraduate students are sexually assaulted in college, according to End Rape on Campus.