Betsy Devos has recently stated she will roll back Title IX policies for sexual assault investigations that were put in place by the Obama Administration. On its face, and how most major media outlets framed this headline, this sounds like rapists and perpetrators are being protected more than victims, and if that were true, it would be wrong and disgusting. But, it’s not really true, and most headlines are extremely misleading – showing you only a small portion of the whole picture. Yes, she is rolling back policies, but it is not valuing the alleged perpetrator or victim more. It is making them equal during the investigation – a quality anyone accused of a crime or ethics violation would certainly appreciate. Guilty until proven innocent, which the Obama era guidance effectively put in place, is a characteristic of North Korea, Nazi Germany, and the Soviet Union, and if you think any of those are great places, get off this site.
Judging by the article comments and tweets I have read, it doesn’t appear that many people actually know what Obama’s policy actually said. So, let me explain.
The Obama Administration’s policy was outlined in 2011 via the “Dear Colleague” letter, and the letter vastly changed the process for how universities treated sexual assault claims. For starters, sexual assault carries a misdemeanor or felony tag in the legal sense, depending on the crime’s severity and the exact law of the state. For misdemeanors and felonies, the accuser or prosecution is required to prove that the accused person committed the crime “beyond reasonable doubt.” In general terms, you have to be at least 99 sure that the accused is guilty. But under the “Dear Colleague” letter, that isn’t the case.
Here is the current guidance from Obama’s “Dear Colleague” letter, per The Hill:
“Among other provisions, the guidance reaffirms that Title IX requires institutions to use a ‘preponderance of the evidence’ standard in investigating allegations of sexual harassment or domestic violence,”
Preponderance of evidence is the burden required for civil cases, not criminal ones in a court of law. While this isn’t a criminal case, an expulsion from a university almost guarantees a person that they won’t be obtaining a degree from a reputable university, because reputable universities tend scoff at sexual assault charges. And with that, their future career aspirations will all but have vanished too. But back to the preponderance of evidence. Essentially, it means you only need 51% of the evidence to convict the accused, not the 99% required by law for criminal investigations. Keep in mind, each case starts at 50% for the accused and 50% for the accuser, so you only need 1%.
Even Janet Napolitano, a former member of Obama’s cabinet and staunch Democrat, spoke out against the mandate stating: “schools were left with significant uncertainty and confusion about how to appropriately comply after they were implemented.”
And that’s exactly the problem. Universities aren’t equipped to review evidence and issue a judgment in sexual harassment claims – they simply don’t possess the expertise and resources required. CNN had a great article showing how unorganized, uncertain, and unprepared universities were, and still are, for handling sexual assault hearings. Another fact that should scare anybody undergoing a university hearing. Additionally, Courts have overturned numerous university tribunal decisions since the “Dear Colleague” letter on the grounds of lack of due process, prohibiting defendants from examining evidence, preventing cross-examinations, not notifying the accused of all accusations, and other glaring departures from basic rights afforded to people in this country.
Rapists and people who commit sexual harassment should be prosecuted to the fullest extent possible by the law and school, because it is an unspeakable crime. In addition to that, victims and survivors deserve to feel the closure and justice of a guilty verdict. However, that does not mean that the alleged perpetrators do not deserve due process in reaching this verdict. Everyone has rights, and you can’t deny someone their rights simply because you don’t agree with their actions. Honestly, I shouldn’t have to explain that to anyone.
And don’t forget, schools and universities are still required to comply with Title IX and protect students from sexual assault. That has not changed.
Title Image via “Secretary of Education Betsy DeVos at CPAC 2017 Feb 23rd 2017 by Michael Vadon” by Michael Vadon is licensed under CC BY 2.0