New Federal Title IX Rules Detrimental to Survivors
On May 6 of 2020, the Department of Education released a new set of guidelines and regulations for how schools should handle sexual assault and harassment allegations. The new interpretation of Title IX makes it more difficult for survivors to report their assaults, as the criteria and process has changed. Universities must adhere to these new rules.
Sexual misconduct that is considered reportable to the university is now defined as “severe, pervasive, and objectively offensive.” This may not seem like a notable change; however, the word “objective” creates an issue because if not everyone agrees on an action being offensive, the report falls through. This allows universities a reason to not investigate claims. Conducting an investigation is time consuming, and is costly for a university, not to mention the bad publicity that a university might receive because of it. These reasons can be incentive enough for some universities to not want to conduct said investigation. The updated criteria of what is considered a reportable offense is surely going to make some survivors feel invalidated, and silenced. It should not be up to a group of people who are completely removed from the situation to determine if it is severe and offensive enough to even be considered as an attack. If the survivor feels like they were the victim of sexual misconduct, then the situation must be treated as such.
On top of the criteria for offenses to be deemed reportable, the process of the investigation has changed as well. It is now required that the survivors of sexual misconduct undergo a formal live hearing, where they will be cross-examined and forced to face their assaulter. This can not only traumatize the survivor from reliving the assault/harassment, but also from the aggressive attack from the assaulter’s side. The standard of proof for the survivor to uphold to win the case has also been elevated. Universities now have the option to go by the standard of “clear and convincing evidence” opposed to the preponderance of evidence. This means that the survivor must have direct evidence that almost undoubtably proves the sexual misconduct happened, as opposed to only needing more evidence in the survivor’s favor than the assaulters. Many people understand it can be very difficult to have direct and undeniable proof of sexual misconduct. Most of the time, there are very few, if any witnesses. Even if there is a witness, it can be even harder to prove that what happened was not consensual. Changing the standard of proof to “clear and convincing evidence” is an unfair standard to hold a survivor to.
If the survivor does not wish to go through with a formal resolution, they can choose an informal one. During informal resolutions, the alleged assaulter does not have to agree to take part. However, if they somehow agree to meet, they cannot be punished by the university in any way. The only hope a survivor has in an informal resolution is to ask the assailant to hold themselves accountable, and do what the survivor requests. As one could imagine, this will likely lead nowhere. It does not require the university, or the assailant to take any action. This will lead to the survivor having to make sacrifices themselves to have any shot at feeling safe on campus. This could take the form of the survivor dropping classes they have with their assaulter, leaving organizations the assaulter is also a part of, switching dorms, or avoiding certain parts of campus altogether to minimize contact with their assaulter.
On top of these changes, Universities are also no longer required to act on claims that do not happen on campus, or “under any education program or activity.” This means that an incident could occur just off campus at a party or get together between two students from the university, and the university would not be required to step in. Study abroad cases are not included in these standards. Again, a situation that ends in assault or harassment between two students from the same university who are abroad for a semester together could occur, and the university would still not be required to take action. With so many students taking part in distant online learning, this poses the question of whether or not those students will be protected under the new interpretation of Title IX.
I reached out to Lisa Cania, who is the Title IX coordinator here at SLU. She said that a group of about 25 faculty and staff, including advocates, worked with her to amend the Title IX policies and procedures over the summer to adhere to the new rules. She also directed me to the University’s online information about these changes. From here, I found that it does state the new rules about universities not being responsible for offenses that happened aboard. However, SLU states that although these are the federal rules, the school will still step in on these claims. It also addresses the new criteria for what is considered a reportable offense. The exact wording that is used is, “Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that is effectively denies a person equal access to the University’s education program or activity (commonly referred to as a sexually or gender-based “hostile environment”).” Understandably, SLU had to make this adjustment. However, as reasonable as a person may be, I still do not believe it is fair to have an outside person deem what is offensive enough to be validated.
I spoke with a student advocate about these new federal Title IX rules. I asked them how they felt about them, and how SLU is handling them. They said, “logically I understand that people want to make the process fair on both sides, however the vast majority of sexual assault allegations are true, so I think it is essential to believe survivors. The new changes to the Title IX process make an already extremely difficult process for everyone involved harder with the complainant and respondent having to be in the same room answering questions about the case. Also, the new threshold makes it very difficult to report cases of sexual harassment which makes me worried that it might become more of an issue on campus. If anything, the changes just make me angry, and it feels like we are going backwards instead of forwards for making college campuses safe, inviting places for everyone to thrive.” This person, who wishes to remain anonymous, also said, “SLU is trying to handle it the best they can, but the federal laws make it very difficult. SLU has made university policies that follow similar guidelines, but cover things that aren’t in Title IX anymore, like off campus policies including study abroad.”
Overall, I believe these new federal rules will be detrimental to survivors of assault and harassment. Being placed in a room with an accused attacker can retraumatize the survivor, and the counter arguments will make them feel like they are being invalidated, along with the new criteria of a reportable offense. Nobody should have the right to tell a survivor that their attack was not bad enough to have actions taken for justice. Nobody should not have the right to feel safe in their educational environment, especially after a traumatizing experience. Survivors need to be heard, and helped after an attack, and these new federal rules around Title IX seem to overlook that need. Luckily, SLU seems to be handling these new rules to the best of their ability, as the anonymous advocate stated. SLU is still offering guidance and action for attacks that would, at many other schools, be unreportable. The university also provides supportive measures, such as safe walks home, extensions on deadlines for classes, mutual “no contact” orders, and possible removal of the claimed assaulter from campus if necessary. If you or someone you know is in need of the university’s services in reference to Title IX, it is important to know that even with these new federal rules, you will be heard. Do not be afraid to reach out to a responsible administrator on campus, or call the SLU advocate line at 315- 244-5466.