A week ago today, the United States Department of Education withdrew their support for guidelines offering added protection to survivors of campus sexual assault.
The guidelines, created in 2011 with the penning of the ‘dear colleague letter,’ supplemented the protections offered to students by Title IX. They encouraged universities to utilize a minimum standard of proof, to accelerate their adjudications, and to avoid cross-examining accusers. Moreover, the guidelines also allowed for the survivor to appeal not-guilty verdicts, adding an additional layer of protection for survivors of campus sexual assault.
The letter did not mandate any of the aforementioned guidelines, but stated that universities receiving federal funding had to comply lest they risk losing their federal financial backing.
Since its passage in 2011, the ‘dear colleague letter’ has garnered much attention. While it incensed some, like Oklahama senator James Lankford, who saw no legal basis for the “sweeping policy changes,” others felt that the letter was the first step forward in combatting instances of sexual assault.
It is notable that prior to 2011, survivors often accused universities of sweeping cases of sexual assault under the rug; a study conducted in 2002 by Department of Justice, though, did state that a vast majority of schools were already utilizing the preponderance standard prior to the issuance of the letter.
The preponderance standard dictates that an incident does not need to be proved beyond a doubt, rather there must simply be a minimum of 50 percent of the evidence that indicates guilt.
Yet even after the passage of the ‘dear colleague letter,’ survivors continued to purport that university officials were disregarding their cases. A 2014 survey conducted by Al Jazeera found that more than 40 percent of U.S. colleges and universities hadn’t conducted a single investigation into campus sexual assault within the previous 5 years- an astounding percentage given that 1 in 5 women and 1 in 16 men are reported to experience sexual assault during their time on college campuses.
Much of the criticism leveled against the guidelines recommended in the Obama-era ‘dear colleague letter’ center on protecting the accused. As Education Secretary Betsy DeVos stated earlier in the month, her department is “concerned that previous guidance denied proper due process to those accused.”
Critics of DeVos’ rescinding of the guidelines argue that removing them will lead to a decrease in the protections afforded to sexual assault survivors on campus. Without the implementation of the guidelines, the burden of proof falls predominantly on the shoulders of the accuser. In such instances, survivors are somtimes subjected to over-intrusive lines of questioning.
As Isis Flores ‘18, president of the sexual assault advocacy group on campus, the Advocates, states: “My main concern is the message that this sends to survivors. DeVos is perpetuating rape culture by giving leverage to the idea that survivors are lying about their experiences.”
In an effort to counteract the alleged subversion of the rights of the accused, DeVos is now encouraging universities to utilize their own desired levels of evidence in adjudicating instances of campus sexual assault, effectively giving them free reign to decide what counts as acceptable proof.
The removal of support for the Obama-era guidelines has rendered many activists and politicians irate. Those in favor of the 2011 ‘dear colleague letter’ recognize the guidelines as being integral to protecting survivors who wish to seek judicial process on their respective campuses; the removal of the guidelines will put those students at risk once more, argue advocacy groups and politicians like Senator Kirsten Gillibrand and Seantor Bernie Sanders. Gillibrand referred to the decision as “Shameful. This decision will hurt and betray students, plain and simple.”
Although DeVos’ decision will have resounding effects for survivors of campus sexual assault nationwide, the impact will be less felt in New York State due to pre-existing legislation.
As of July 2015, NY State has employed an aggressive policy to combat campus sexual assault. Referred to as “Enough is Enough,” this policy “requires all colleges to adopt a set of comprehensive procedures and guidelines, including a uniform definition of affirmative consent, a statewide amnesty policy, and expanded access to law enforcement.”
Thus, despite the actions of DeVos, students on St. Lawrence campus will continue to be protected by the 2015 NY state legislation.