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Jul
15
2017

Massively Wrong Major Title IX Policy Change Could Happen Regarding Sexual Assault Guidance

 

Good evening, Atlantic Coast Conference (ACC) sports fans.

Hope you are having a great weekend.

We have written on numerous occasions about sexual violence on campus, particularly about the lack of institutional control at Baylor University regarding Title IX enforcement.

Let’s be 100% clear here on an important fact:  All the major statistics show that only a very small percentage of reported rape cases are false.

The U.S. Department of Education, however, might rescind some prior guidance on the standard of evidence required to prove sexual violence (and more specifically, rape).  From the New York Times:

The most controversial part of the 2011 guidance mandated that college officials use a “preponderance of the evidence” standard, which makes it easier to find students responsible than a “clear and convincing” evidence standard that some schools had been using. Advocates for the accused are pushing for Ms. Jackson to revoke the guidance and adopt the “clear and convincing” standard.

A preponderance of the evidence essentially means that more than 50% of the evidence points to something and is the burden of proof for a civil trial.  The clear and convincing standard, while not the highest standard of evidence, is much a higher burden to prove. To meet the standard and prove something by clear and convincing evidence, a party must prove that it is substantially more likely than not that it is true (the standard is used in civil and criminal trials).  (Tip of the hat to Cornell University Legal Information Institute for both definitions).

The clear and convincing standard of evidence will likely prevent many victims from bringing forward their allegations.

It is never good, thought, that the individual heading the enforcement arm, the Office of Civil Rights, takes such a Laissez-Faire approach to sexual violence on campus (Tip of the hat to the Washington Post):

Speaking to the New York Times, Jackson argued that college investigations have often been unfair to accused students, in part because of undue pressure from the federal government. She claimed that “90 percent” of accusations “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.”

 

The Washington Post has called for the Assistant Secretary for Civil Rights to resign.  The Post is right:

What she should have apologized for is continuing the myth that women are prone to bringing false accusations of rape. Rape is an underreported crime, and the prevalence of false accusations has been estimated at between 2 and 10 percent. Victims often don’t step forward precisely because they don’t think they will be believed or they fear punishment and retaliation from the authorities who are supposed to protect them.

Indeed, for far too long that was the norm at colleges and universities across the country as a blind eye was turned to sexual misconduct and the student drinking that often factors into these cases. Victims were discouraged from making reports, and attackers went unpunished as institutions worried more about protecting their image. The Obama administration was right to call universities to account for how they handled these cases and remind them they stood to lose federal funding because sexual assault is sex discrimination, which is prohibited under Title IX.

No question that colleges and universities face challenges in putting in place disciplinary systems that fairly and effectively deal with allegations of sexual misconduct. There is the need not only to support victims but also to provide due process to guard against mistakes and injustice. Whether the guidance issued by the Obama administration resulted, as some argue, in unintended consequences and needs adjustment is worthy of careful study and debate — which Ms. Jackson is unqualified to lead.

Are individuals falsely accused for sexual assault? Yes, that does happen – but individuals falsely accused in a small number of cases.  The accused’s due process rights must be protected during every step of a campus Title IX investigation and proceeding.  That means campuses will have extensively train their Title IX officials on the rights of the victim and the accused.

Processes need to be reformed at the campus level first before a standard of evidence (used to prove sexual violence) is rolled back.

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