By Miguel Barragan
The Education Department released its proposal for changes in the rules of reporting and investigating sexual assault on Friday.
The proposal would affect the federal civil rights law known as Title IX.
Under the new proposal, victims who report sexual assault on campus may have to deal with mediation, a process which involves victims facing the accused.
This is troubling because it makes the process of reporting sexual assault on campus that much more devastating for victims.
A victim of sexual assault having a face-to-face interaction with the person who assaulted them could trigger a traumatic reaction.
Mediation would come in the form of a process called cross-examination, which is used in a court of law to determine the truth about accusations.
In cross-examination, accusers and the accused are interrogated about the case by a third party.
Supporters of the changes, like the Foundation for Individual Rights in Education, say that this is a good thing because they give more rights to the accused.
Samantha Harris, director of policy research at FIRE said on an NPR article that the proposal is “recognizing that schools must provide meaningful procedural protections to accused students when adjudicating such serious offenses.”
It’s okay to protect the accused but making it harder for the victim to report sexual assault by introducing cross-examination may put the accused at a disadvantage as well.
Scott Schneider, an attorney from Husch Blackwell firm who specializes in higher education said in an article by The Atlantic, “When people glibly talk about cross-examination being the greatest tool for discovering the truth in the history of the Western world, they obviously haven’t seen some attorneys do cross-examination.”
Schneider points to the obvious problem that arises when some can afford highly-effective attorneys and others can’t.
Victims and the accused could both suffer from this process if they are low income and can’t afford a good attorney to protect them.
Other changes proposed come in the form of a difference in the definition of sexual harassment.
The 2011 guidelines that the Obama administration placed define sexual harassment as “unwelcome conduct of a sexual nature,” while the proposed rule changes would define it 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.”
This change would discourage victims from reporting sexual assaults that they feel may not be interpreted as denying a person access to the school’s education program or activity or as so severe and pervasive.
Victims who feel their sexual assault claims may not be strong enough to persuade the authority in charge, Title IX coordinator, will not report.
There’s already a stigmatization of sexual assault victims reporting their assault, but these changes would only make victims more uncomfortable with reporting.
New rules proposed would allow institutions to have a higher standard of evidence defined as “clear and convincing evidence.”
The previous guidelines of a “preponderance of evidence” used to determine whether claims are legitimate or not will still be allowable, however.
The standard of evidence used will be left up to each individual university and Title IX coordinator.
It’s important to note that a “preponderance of evidence” is an accepted standard in civil rights cases.
It’s difficult enough as it is to gather evidence for a sexual assault incident.
It’s rare for people to have “clear and convincing evidence” of their traumatic experience because a lot of victims aren’t prone to recording evidence directly after being assaulted.
The proposal would also make it so institutions are only allowed to investigate assaults that happen at campus or at a campus-related event or program.
This means reports of sexual assault occurring between students on off-campus housing will not be investigated.
The proposal says schools would not be required to pursue cases that are not reported directly to the proper authority, typically the Title IX coordinator.
These rule changes would discourage victims from stepping forward about their trauma and for that they should be redone.