Laura Ashley Powell
Betsy DeVos, the United States Education Secretary, has announced a proposal to change rules regarding the handling of sexual assault and harassment cases on college campuses. She noted that the current system of rules has “failed,” and are, “shameful,” and unfair to the students who have been accused.
President Trump has expressed this same opinion by saying that male college students have been unfairly treated as guilty in cases of sexual harassment. The proposed rule changes reflect the administration’s stance by granting greater legal protections for those who have been accused of sexual assault or harassment. The proposal has been met with both negative and positive responses.
One of the major changes proposed is changing the level of proof required to incriminate the accused. During the Obama administration, the prosecution needed only a “preponderance of the evidence,” which meant that whatever evidence was most convincing or probable would be used.
If DeVos’ changes are implemented, schools would be able to instead require “clear and convincing evidence.” The regulations would also require that the same standard procedure in these cases be used for students and faculty and staff. Before the rules can go into effect, they must go through a period of public comment, which has the potential to be long and drawn out and possibly bring more changes in regulations.
Another change in these proposed regulations would be the ability for students to cross-examine each other instead of requiring a third party, such as a lawyer, to question the student on the prosecuting side. Under the Obama administration, this was avoided in an attempt to prevent victims from being further traumatized as a result of courtroom peer confrontations.
Samantha Harris, the director of policy research at the Foundation for Individual Right in Education, supports the proposed changes in regulations. She stated that the administration is, “recognizing that schools must provide meaningful procedural protections to accused students when adjudicating such serious offenses.”
“We expect that the proposed regulations will be a dramatic improvement,” said Harris.
Opponents to the proposed changes argue that fewer victims will report their attackers, not wanting to enter into a process that makes it difficult for them to prove the attacker’s guilt. According to Jess Davidson, part of a group called End Rape On Campus, these proposed changes reminisce of times when “rape, assault and harassment were swept under the rug.”
Looking further into the proposed changes, there is a call by the administration for “reasonably prompt” periods of investigation instead of being drawn out. More informal solutions, such as using a mediator instead of going to court, would no longer be banned. Protections to the victim, such as a no-contact order, would apply to the accused as well as the accuser to protect both sides while the court is deciding if the accused is guilty.
The cases that will require investigation will be narrowly defined as those that include sexual misconduct “so severe, pervasive and objectively offensive” that the victim is unable to attend classes or school activities. Critics of the new rules say that this will allow schools to be inactive in too many cases.