A student at my university recently told me she had been sexually assaulted. It happened nearly a year ago, she said, and she worried about increased anxiety as the anniversary approached.
It’s not the first time, and very unlikely to be the last, that I hear this from a student. Research estimates that one in five college women will experience assault. As a faculty member teaching and advising many students, I may be the person a student tells first.
In addition to offering the student what support I could, I passed what she told me on to our Title IX office, as I’m required by law to do. But the decision about whether to file a formal complaint that could trigger an investigation and sanctions against an assailant always lies with the student.
Students contemplating that difficult decision know that they are likely to face denials and doubt if they decide to come forward. They see high profile cases like R. Kelly’s performative anger in his recent interview, Justin Fairfax’s continued denials of two women’s claims against him, and reports of the special protections afforded to Jeffrey Epstein.
Most visible of all, the apparent lack of consequences for President TrumpDonald TrumpSanders calls out Manchin, Sinema ahead of filibuster showdown Laura Ingraham 'not saying' if she'd support Trump in 2024 The Hill's 12:30 Report: Djokovic may not compete in French Open over vaccine requirement MORE despite myriad accusations of sexual misconduct. Even as Alva Johnson recently added her testimony to that of 22 other women who have publicly claimed that the president harassed or assaulted them, the Trump administration is revising the rules that would govern students’ complaints of sexual misconduct.
The controversial proposal from the Department of Education raises new hurdles for victims while offering new protections to those accused. The public comment period drew a deluge over 100,000 responses, including this excellent one from my own Northwestern University. The Department must consider all comments before implementing final changes.
If the proposed changes take effect, most victims of campus sexual assault would be well-advised to avoid pursuing disciplinary action. More perpetrators will face no consequences.
Already, most survivors don’t report. Underreporting is often attributed to survivors’ fear that they won’t be believed. More to the point, their fears are justified.
The investigation process can be difficult, even traumatizing, for survivors. One student reports that she was asked to demonstrate the position in which she was assaulted. And even when a perpetrator is found responsible, chances are they will remain on campus. Survivors weighing expected costs and benefits of reporting may reasonably decide not to do so.
The proposed changes provide extra protections to the accused, shifting even more burdens to victims. The guidelines aspire to treat complainants and respondents equitably. But they require schools to operate under the presumption that the respondent is not responsible for the alleged conduct.
Survivors who proceed will find the presumption difficult to overcome. They will face cross-examination by an attorney or other advocate for their assailant. And they may need to meet a high evidentiary bar.
Previous guidelines required use of a preponderance of evidence standard, holding responsible those found more likely than not to have committed an alleged assault. Now schools could decide that that’s not good enough.
Education Secretary Betsy DeVosBetsy DeVosJury finds Theranos founder Elizabeth Holmes guilty on four counts Mnuchin, Pompeo mulled plan to remove Trump after Jan. 6: book Republicans look to education as winning issue after Virginia successes MORE’s Department would allow schools to impose a higher standard of proof in sexual assault cases than they apply to other sorts of complaints. And the guidelines shield students who commit sexual assault off-campus from action by their universities — in stark contrast to those who violate other campus policies.
The guidelines justify these special protections by appeal to the “heightened stigma” of being subject to a complaint of sexual misconduct. The department seems markedly less concerned about the special harm of being subjected to such misconduct.
Taken together, the changes create a grueling process for victims, likely to exonerate their assailants in the end. Pursuing most complaints under such a process would be ill-advised. To embrace these revisions is thus to accept that many, perhaps even most, assailants will act with impunity.
To be sure, many are concerned about due process rights for the accused. But at issue is what process is due, in a context that is not a court of law, where the stakes can be as high for the accuser as for the accused.
Political philosophers like myself are concerned with the just design of institutions. We recognize that the coercive nature of criminal law and penalties raise special questions. No one has a choice about being subject to the criminal law. And the cost of false conviction is potentially high, though estimates suggest that fewer than five in 1,000 rapists will serve jail time.
But these are not criminal cases. Students are enrolled in schools voluntarily, and expulsion is the most burdensome sanction a university can impose.
Meanwhile, a victim whose assailant is cleared, or one who has no protections because she’s declined to file a complaint, may find herself unable to continue sharing a campus with the assailant, a cost comparable to the worst assailants face.
If the new proposals take effect, students who file complaints will face a system that presumes lying, while a respondent who denies the accusations is telling the truth. They will have to answer questions about the assault from someone tasked with protecting the rapist’s interests.
Convincing others that it is more likely than not that the rape occurred will not be enough to secure a finding against the alleged attacker. Even if the person is found responsible, there is a two in three chance that he will remain on campus.
Students who understand these conditions are unlikely to come forward at all.
Keeping pressure on the Department of Education to significantly revise these proposals is essential. As it stands, they further narrow an already imperfect path for pursuing allegations.
Kyla Ebels-Duggan is an associate professor of philosophy at Northwestern University and a Public Voices fellow through The OpEd Project.