Time and Money Needed to Challenge a Sexual Abuser

June 23, 1972—President Nixon signed Title IX of the Education Amendments of 1972 (20 U.S.C. §1681) into law, changing the landscape of public education forever. Title IX guaranteed that no one could be “excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

That’s a mouthful. Here’s what it means: Gender cannot be used as a basis to deny someone a public education. That decision was only 45 years ago. That’s younger than the parents of most Millenials!

If you were born biologically female prior to June 23, 1972, nowhere was it written that you were entitled to the same classes or opportunities that the boys received intrinsically. I can only imagine how women’s confidence and ambition were affected by a lack of guaranteed education.  I surmise that this institutionalized sexism is responsible for ingrained, self-loathing that women may feel towards themselves and other women, manifesting itself as voting for patriarchal policies or a dislike of their own bodies. This is the legacy of gender inequality.

Growing up, I would hear women older than me talk about pre-Title IX schools with contempt and some disbelief that it took the government to step in before they could have a basketball team. Mixed into these conversations is a little joke about gender-conforming athletic wear that was more fashionable than utility. Granted, I was never the athletic type, but I often wondered what it would have been like to have to fight to do something that seemed so obvious like letting women play sports competitively. Little did I know that sports were just on the surface of the opportunities that women were fighting to access.

Over the years, Title IX has been tried in the courts to see how far it can be pushed or limited. Extended beyond course offerings and sports, Title IX has been used to guarantee that all women have the right to safety during their educational pursuits; more specifically, the law has been interpreted to require that all public schools investigate allegations of sexual harassment, sexual assault, sexual coercion, and rape, because women and men who have been victimized do not have equal access to education due to physical and psychological abuse potentially impairing their access and success. No one can learn calculus well while reliving nightmares and fearing that their attacker lurks just around the corner. Victims of sexual assault can pursue a legal case through the local police and courts, but the language of Title IX offers a parallel system for pursuing justice.

Despite the prevalence of sexual assault on college campuses, it wasn’t until the Obama Administration’s guidelines were sent to college campuses that many women felt their claims may be taken seriously, although there are still problems. Sexualt assualt is hard to proscetute because the crime is often without witnesses beyond the violator and the victim. Recognizing the difficulty of collecting evidence for sexual abuse cases, the Obama Administration’s guidelines called for a burden of proof that requires 50% of evidence to point to the crime, known as preponderance of evidence. Now, if you’re like me, the 50% threshold seems arbitrary, but here’s the simplest definition I’ve found from Legal Dictionary: “ the plaintiff must prove that it is more likely than not that the facts presented are true.” Preponderance of evidence does not rely on “without a shadow of a doubt,” recognizing that in some scenarios, like sexual assault, the amount of evidence will be limited because of the nature of the crime.

You can read the full Obama Administration recommendations here.

Unfortunately, Trump-appointee and Secretary of Education Betsy DeVoss, whose family has ties to student loan debt collection and for profit colleges, has rolled back these recommendations because she feels that the falsely accused are having a rough time of it. In an announcement dated September 7, 2017, DeVoss commented, “Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates. And any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.” With Devoss’s rollback of these guidelines, schools can require a higher evidence threshold, making it much, much more difficult for the abused to be able to prove the transgressions.

DeVoss claims that she wants to guarantee fair access to due process, but will demanding more evidence in cases with limited witnesses really solve the problem? Because of the privilege and trust that society places on male voices over female voices, it’s evident that the more evidence demanded, the less likely it is that due process will give victims justice, unless every individual wars a fully-functional, always on body camera. But individuals shouldn’t have to give up privacy in favor of complete surveillance because society doesn’t want to believe sexual assault victims and punish abusers. “Pitting due process rights of the accused against concerns for survivors' safety and well-being while investigations are pending” is how one analysis described the Department of Education’s rollback decision. Due process is a core of our democracy, but when it comes to sexual assault and rape, the judicial system favors abusers because of how little evidence is usually available in these cases. This doesn’t change whether the cases are tried on college campuses or in the judicial system.

For the time being, the rights of victims and the accused remain the same because, as the Chronicle of Higher Education writes, “practically speaking, federal guidance on campus sexual-assault policy has returned to the pre-2011 era. But colleges’ policies won’t. At least not right away.” Most colleges are waiting for the official new recommendations before doing anything rash. The Department of Education did release an interim document, but its unofficial/not final status means that most schools will adopt a “wait and see” mindset before changing policies, which will be a long drawn-out bureaucratic process if and when policy changes are made. In addition, because of #MeToo movement and the larger conversation regarding sexual assault on campuses, colleges would be entering a PR nightmare by appearing to pull back their support for students who have been victimized.

However, knowing that the federal government is more concerned about the small number of falsely accused perpetrators instead of the high number of sexual assault victims who never see justice is problematic. Again, victims may feel discouraged to speak up because they will not be believed, and colleges may drag their feet to review these cases until new guidelines are released.

Also, to DeVoss’s point that the falsely accused are being treated unfairly, the advocacy group Know Your IX writes that the Obama Administration’s recommendations actively set stronger guidelines for ensuring that due process is followed because it provided the following protections for both the victim and the accused:

  • “Must be afforded similar and timely access to any information that will be used at the hearing.”
  • “Must have an equal opportunity to present relevant witnesses and other evidence.”

  • “If a school chooses to provide for an appeal of the findings or remedy or both, it must do so equally for both parties.”

  • “If [a] school allows one party to be present for the entirety of a hearing, it must do so equally for both parties.”

  • “If [a] school allows one party to cross-examine witnesses, it must do so equally for both parties.” Further, the DCL recommends that “the parties . . . submit questions to a trained third party (e.g., the hearing panel) to ask the questions on their behalf.” 

Prior to the Obama Administration’s guidelines, the accused was not entitled to these protections, a fact that DeVoss appears to ignore.

Rolling back guidelines for investigating sexual assault seems counterintuitive in the #MeToo movement, but it’s unsurprising coming from a woman who appears to be perfectly okay working for a president who has been accused of sexual assault by 19 women.. In addition, it seems likely that DeVoss appointed because of her family’s financial contributions to her boss’s political campaign; I could go into details why DeVoss is not qualified to hold this position, but I think this article from BBC News already does a great job. Unfortunately, this type of pay-to-play rewarding is not limited to the appointment of DeVoss, many unqualified Trump appointees will be influencing how this country functions (or doesn’t) for an unknowable amount of time.

Yet, even if the recommendations from the Obama Administration remain in place (and I believe they should), not all victims of sexual assault are able to or can be expected to come forward.  Some cannot voice their trauma because it’s too fresh. Others cannot out of fear of retribution from the accused, administrators, employers, or others who disbelieve the report. Laws protecting whistleblowers are limited and often cannot save someone from the ostracization of everyday society. Being called a liar and attention whore is just the start.

Victims of sexual assault who speak up and pursue a due process case will be run through the gambit—their life dissected to see if in some way they “asked for it” or actually consented. Victims will endure grueling interviews and may have to go through an invasive rape kit procedure, all while struggling with the emotional trauma of reliving a nightmare.

After a lengthy process, comes a decision and hopefully justice. Finally. Closure.  

Not really. Maybe there’s an appeal. Another trial…

Now consider that if you don’t win the due process case (or even if you do), the original defendant may turn around and sue the accuser for defamation. No matter if reports were or weren’t filed with schools or the local police department, victims aren’t protected against defamation suits. The threat of defamation lawsuits are one of the most successful silencers, as victims fear that a lawsuit will bankrupt them and suck up all of their time, not to mention making them relive their trauma yet again.

While #MeToo movement is supposed to be liberating, the feeling of united sisterhood against sexual misconduct through emotional tell-alls is not accessible for every survivor of sexual assault. Social media posts, blogs, interviews—basically anything that you speak or write about another person—can be dissected to see if it violates slander or libel laws. Therefore, many in the #MeToo moment have described how they were hurt without naming names because adding a name to the story opens the victim up to unintended lawsuits. Even without filing a claim of abuse, the victim may be drug into the courtroom to describe the experience because she verbalized or wrote down the name of her abuser.  

This process is completed. It’s messy… and very expensive.

In a story with Buzzfeed, attorney Scott Schneider noted an uptick of defamation cases against sexual assault accusers, saying that now 1 in 4 cases are hit with a defamation countersuit. In other cases, “the mere threat of a defamation suit is enough to deter a student from going ahead with a sexual assault claim.” College students who are victims of sexual assault barely have the money to retain a lawyer for their original case, much less pay for the the lawyer’s time for two. Seeking justice is hard enough from an emotional perspective, not to mention the time and money that it takes. At this point, very few universities provide legal council for their students.

So what is a victim to do? Unfortunately, there are no good answers. The court of public opinion may seem like a convincing option, given the success that some women and men in Hollywood have had at getting powerful abusers like Weinstein and Spacey expelled. However, in many cases, this is just limited to Hollywood, like special effects. (Note: The women and men who courageously spoke up against these abusers and others are still open to demination lawsuits, and time will only tell the extent of lawsuits that will arise.) Saying nothing extends the problem, at best condoning the inappropriate behavior of someone’s unwanted comments or at worst leaving a predator out there to strike again, depending on the severity of the sexual misconduct. On the other hand, speaking up means uncomfortableness and lawsuits, but it also may mean justice, a small hope.

The only answer is the victim must do what is best for him or her. Only the individual knows what they can handle. As a society, we must support victims who come forward by believing their stories, calling for reviews of how sexual assault cases are handled, and working towards due process procedures that seek the truth and hand out just punishments based on the seriousness of the offense, not how “likeable,” male, or white the person is.

Despite the threat of defamation suits and other setbacks, advocates still see Title IX as the strongest mechanism to fighting sexual assault on campus, but it’s power is being jeopardized by DeVoss’s suggested rollback of the Obama Administration's guidelines. Promising everyone, no matter their gender, an unmolested seat at the table is a pretty simple concept, but gender equality seems to be a lesson, not an application, for some.

Let’s change that. Teach the world that decisions regarding what happens to our bodies starts and ends with the soul living within. No one—not an abuser or an unqualified legislator—should be given the power to take our autonomy nor our education.