Campus sexual misconduct is a problem. Emulating a broken system is not the only solution.
Seven years ago, the Obama administration sent a “Dear Colleague” letter to colleges that receive federal funding, providing guidance on how they should adjudicate sexual harassment cases in order to avoid violating federal Title IX rules meant to prevent sexual discrimination. It was not a formal mandate, but it did not seem optional to schools that didn’t want to lose funding. The new rules lowered the evidentiary standard for conviction in sexual misconduct cases from one requiring “clear and convincing” evidence (about 75 percent) to a “preponderance of evidence” standard (51 percent). “Also, the Obama administration wouldn’t allow the accused to see—much less refute—the evidence against them or afford them any avenues for cross-examination. (And forget about live hearings.)” writes Shikha Dalmia for The Week. “This is akin to convicting and deporting [noncitizens] suspected of terrorism by using secret evidence in Star Chambers, something that liberals have vehemently—and rightly—opposed.” The Obama rules also pushed a “single investigator model,” where one staffer would gather and weigh the evidence and render a verdict without any impartial oversight. [Shikha Dalmia / The Week]
“Worthy as [this effort] was, it resulted in a radical inflation of the definition of sexual misconduct on campus to potentially include virtually any sexual encounter,” including “jokes and unwanted flirtation,” writes Emily Yoffe for The Atlantic. “And schools, desperate to avoid displeasing federal Department of Education investigators, established Title IX procedures that flouted the rights of the accused.” [Emily Yoffe / The Atlantic]
In a New York Times op-ed this week, Lara Bazelon––a self-professed Democrat and feminist–– draws on her experience to express support for Education Secretary Betsy DeVos’s proposed reforms. Bazelon directs law school clinics where her students represent low-income students of color in California who face expulsion based on allegations of sexual assault. “The Obama rules were written to address a real problem: a tendency by colleges to sweep sexual assault allegations under the rug,” she writes. “But it also gave risk-averse schools incentives to expel the accused without any reliable fact-finding process.” Under the proposed rule changes, the single-investigator system would be gone, and cross-examination would be conducted by an adviser for the accused (not, as some have claimed, by the accused). The accuser would be allowed sit in a separate room or participate via videoconference, and their adviser could cross-examine the accused. “The revisions are in line with court decisions that have characterized the current system as unfair,” including two California decisions overturning suspensions for sexual assault “because their procedures were so lacking in basic due process.” [Lara Bazelon / New York Times]
Bazelon and others also point to the racial disparities that permeate adjudicative processes in this country, and appear to extend to these cases as well. (There are no national statistics on race and campus sexual assault complaints––collecting this data would be an important component of any reform process.) “An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.” This phenomenon has been described by Harvard Law School professor Janet Halley. “I’ve assisted multiple men of color, a Dreamer, a homeless man and two trans students,” Halley said. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?” [Lara Bazelon / New York Times]
We should, of course, worry about the rights of the accused. But changing the current setup does not have to mean supporting the DeVos proposals, which more closely emulate the criminal justice model. Criminal defense attorney Scott H. Greenfield is not wrong when he says that “basic procedural due-process rights—notice, opportunity to defend, cross-examination” that have been portrayed as “unfair, traumatic weapons to victimize accusers” are the same processes that are “desperately at risk in non-sex-related criminal cases,” where the same people defend them. But when he asks, “Why are they good for some accusers and horrible for others?” the answer seems pretty clear. Being cross-examined is uncomfortable for everyone, but it can be especially damaging when the incident at issue is itself traumatic and personal, and when being disbelieved is a central fear of the accuser. It is simply not fair to equate the experience of a police officer being cross-examined about a drug arrest with that of a survivor being interrogated about a sexual assault. And Greenfield oversimplifies by adding, “Either the concept of due process is an inherent virtue in our system or it isn’t,” concluding, “not only is it an inherent virtue in all proceedings, but without it we’re left with an inquisition.” [Conor Friedersdorf / The Atlantic]
There is no reason to believe that the quest to make reporting sexual misconduct less traumatic for accusers could only leave us with an inquisition. And it is equally unclear that supporting the accused means letting people “get away” with sexual misconduct. This is only the case if an adversarial court of law is the extent of our imagination. The real problem is the zero-sum nature of these conversations—the notion that more for the accused means less for the accuser, and vice versa.
Yale law professor James Forman recently took to Twitter to wrestle with these questions. “Like Bazelon, I have no doubt that the same race and class biases that drive disparities in well, everything, must also play out in campus sex assault adjudications. But I also know (as does Bazelon) that colleges have long under-protected sex assault victims. So what to do?” He wondered, “Is everything a trade off, or are there win-wins? … Is anybody doing this right? Is there a system or a university that strikes the correct balance? Maybe over in Sweden?”
This week, the podcast “Reckonings” featured a conversation between a man and a woman who, in the wake of a nonconsensual sexual encounter in their freshman year of college, created a sort of restorative process from scratch. At a rally against sexual violence many months after the encounter, the survivor, who goes by Anwen, resisted the urge to call out her attacker, Sameer: “I wanted him to be standing with me, and telling our story with me, in a way that didn’t just write us into the categories of angelic survivor and evil assaulter.” She instead told the audience, “if this person comes forward to tell his story, I hope that you’ll listen to him.” For months after the encounter, Anwen was tortured. Sameer thought it was an awkward hookup. But after they each completed an intervention program that taught students how to respond to sexual assault, they both wondered whether what happened was rape. “Did I do this? Is this is who I am?” Sameer asked himself. “Is that how Anwen feels about this? … I was terrified that I’d hurt her in this way … I was terrified of all the consequences that come with sexual assault and rape, and I didn’t have anybody [to tell] because how do I say, ‘Hi. I think I think I assaulted and raped somebody, but I’m not entirely sure.’” He began reading about consent and asking his women friends about their perspectives on sex and communication. [Stephanie Lepp / Reckonings]
When Anwen approached Sameer to talk about that night, Sameer said that he had raped her and offered to do anything he could to support her, knowing he could not take it back. They went to the director of student conduct, and Anwen decided against a formal proceeding that could have led to his expulsion because she wanted Sameer instead to confront what he did and take responsibility. One step of the restorative process for them was to independently write down what happened that night. When Sameer read Anwen’s account, he thought, “Oh my God. So many moments of that night that I had completely forgotten.” One example: “I thought in my brain and I had asked her to take her shirt off. I didn’t know I told her.” For him, “that’s when everything finally clicked. … I thought I understood before, and then I read her testimony” and realized, “this is what I’ve done.” He went back and changed his own account of that night, incorporating her perspective. Restorative justice, he learned, is not lenient. Sameer stayed in school and graduated, but he was forced to come face to face with his innermost darkness. He believes it would have been easier to lock himself up or get kicked off of campus, but it wouldn’t help anybody. “I didn’t want to take away his agency because that would just be reversing the roles,” Anwen said. “What’s important to me in the restorative justice process is that both people are given a space where they are empowered to make things better.” [Stephanie Lepp / Reckonings]
There is little evidence about the impact of implementing restorative programs such as these on campuses, so it is hard to put them forward as a cure-all. But my colleague, Aviva Shen, previously reported on a restorative program in Louisiana schools, and learned that these kinds of processes can be more effective if they begin long before an incident occurs. Restorative circles, nonjudgmental meetings that allow people to express themselves, can encourage students to consider other people’s perspectives and give them a vocabulary to discuss them. In Jefferson Parish, instead of simply suspending students, teachers were trained to have restorative conversations in their classrooms, asking students what they can do to repair harm, and how the teacher might support them in that effort. As in the case of Anwen and Sameer, certain trainings can lead people to expand their ideas about harm and focus on each other’s well-being. “Rules are important. They keep us safe. They give us boundaries,” Lauren Trout, a restorative justice facilitator with the Jefferson Parish District Attorney’s office, told Shen. “But when rules are broken, what’s ultimately happened is somebody’s been hurt. Because we’re not in relationship to rules and laws, we’re in relationship to one another.” [Aviva Shen / CityLab]