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Strengthen, Not Dismantle, Title IX

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by Alesha Durfee 

September 20, 2017

 

In the United States, almost 20 percent of women and two percent of men will be raped during their lifetime. At highest risk of sexual assault are those aged 18 to 24.

Title IX, originally passed in 1972, forbids discrimination in education based on gender and is intended to ensure equal access to educational opportunities for all students.  Title IX has been used to combat sexual harassment and violence on university and college campuses. In 2011, the Department of Education provided colleges and universities with guidelines for handling cases of sexual violence that occur in the college setting or between college students.

Those Title IX guidelines are under fire from the Trump administration, however. Spearheading this effort is Education Secretary Betsy DeVos, who on September 7 gave a speech at George Mason University where she called for a dramatic restructuring of the program, saying it has “failed many students.

After DeVos’ speech, some commentators applauded the Department of Education’s new direction. Andrew Miltenberg, a defense attorney for many students who have been defendants in Title IX proceedings, said, “Title IX was meant to be a tool for fairness, not a means for colleges and universities to micromanage students’ sex lives.”

To characterize the critically important provision of resources and responses to sexual assault survivors on campus through Title IX as universities “micromanaging student sex lives” is an example of how the rhetoric of the Trump administration has obscured acts of violence and distorted Obama-era policies, minimizing sexual violence and the impact it has on survivors.

The “micromanagement” of my “student sex life” occurred on the night of November 17, 1991. I had decided to walk back to my dorm from the store rather than wait 50 minutes for a bus. That decision has shaped the trajectory of my life.

As I walked through a dimly lit residential area, I was knocked down from behind and groped. My attacker talked to me softly as he started removing my clothes. My efforts to physically resist were useless, so I screamed, he ran, and I ran.  Luckily a young single mother at home alone with a preschooler did the unthinkable—she opened her door to me, even though (or perhaps because) I was hysterical. The mother called the police, who came to her house and started asking me questions, even though I was crying and nearly incoherent.

Why was I walking home alone? Didn’t I realize how dangerous it was? What did he look like? How could I not know what race he was? Why did he stop? Didn’t I have any injuries? Why were my clothes still intact? Didn’t anyone see anything? What evidence did I even have that the “alleged assault” occurred?

Horrified, the mother asked for a female officer. When rebuffed, she stopped the interrogation and got me some water. I will always be grateful to her for her kindness. The police wrote down the address of my dorm, put me in the back of the police car, and dropped me off outside of my building—in full view of the other students living in my dorm, who could only assume that a sobbing girl getting out of the locked back door of a police car on a Friday night had certainly violated the law.

And that was it.

That was the extent of the “investigation” into my victimization.

No officers walked me to my room. No detectives contacted me with questions. No photos were taken, nor was going to the hospital for a forensic exam an option (I didn’t have health insurance anyway). I was never given a report number or a copy of the police report that I hope exists.  No victim advocate called or visited.  No employee of the university checked up on me. No one explained that there was crime victim’s compensation, and that the state would help pay for badly needed care.

I stayed in bed for three days, floating between nightmares and flashbacks. I was far from home and couldn’t imagine who to ask for help. I racked up unexcused absences in my classes. With no resources, no follow-up, and no health insurance, I handled the rest of my sophomore year in college spectacularly badly. I dropped out of school for over a year. It is a wonder that I ever went back, much less that I made it through a PhD program and eventually became a tenured professor.

I’ve never shared my story publicly, even though I teach about and conduct research on domestic and sexual violence. Sexual assault is a highly stigmatizing crime.  Most survivors fear harsh and negative reactions if they disclose their abuse.

But it is because of this history that I’m motivated to speak out about the comments made by DeVos and others last week. My attack was not one that most college students (overwhelmingly, college women) experience. I didn’t know my attacker, and I don’t know if he was a student. It didn’t happen at a party or in a space where I felt safe. I hadn’t been served alcohol or drugged.  There was only one assailant. Someone stepped in at a critical moment to stop the attacker from returning and completing the assault.

But there are many parallels between what I experienced and what others have described that highlight the importance of critical components of the current Title IX system— the damage caused by the experience and my reticence to come forward, the officers’ focus on the lack of physical injury and refusal to investigate, and the need for survivor-centered support throughout the process of seeking justice.

I’m sure that if DeVos heard my story, she would agree that my assault was “reprehensible” and that justice was not served. As she notes, “acts of sexual misconduct are reprehensible, disgusting, and unacceptable.” I sincerely appreciate her strong words on sexual violence.

At the same time, it has taken me 26 years to be able to write my narrative. And I am white, cisgender, now middle-class, middle-aged, and well-educated, and have studied the law and sexual assault.

My narrative is shaped by so many layers of privilege. Many survivors of sexual violence do not have the privilege that I do, and are judged for not having stories that conform to societal stereotypes of blameless victims and clearly reprehensible assailants. Real life (and real victimizations) are always so much more complicated than rhetoric can possibly allow for.

I’m fairly certain that if DeVos had talked to me in those three days after the assault, or even the three years after the assault, she would have found me a far less sympathetic victim. Would that have made me a less worthy victim? Would my case have been seen as frivolous? Without a coherent story, witnesses, or evidence, would I have been one of those examples where “if everything is harassment, then nothing is[i]”?

DeVos and Title IX critics have focused on a number of aspects of the system they believe need to be changed.  Primary among them is the burden of proof used in Title IX cases. Title IX, like other civil rights laws, requires that sex discrimination, which includes sexual assault on campus, be proven by the preponderance of the evidence.  The preponderance of the evidence standard is used for most civil and family law cases in the United States—from domestic violence protection orders to multi-million dollar lawsuits. It means that the judge, commissioner, or whoever is adjudicating the case believes that it is more likely than not that the disputed events occurred. This standard is especially appropriate in cases of sexual violence, where the acts occur in private and there may be little physical evidence. Title IX adjudications are not criminal trials.  They do not pose the threat of incarceration.  They should not be treated as such.

DeVos also decries the lack of legal representation available to students in Title IX proceedings.  I agree that both students should have representation. But the lack of representation for either or both students does not justify abandoning the current system.

Instead, it highlights the lack of resources dedicated to Title IX investigations. This problem mirrors a larger crisis in access to justice in America.  “Meaningful” access to the courts — the ability to attend, participate in, retain legal counsel for, and fully understand court proceedings — “is increasingly out of reach for many Americans”. According to the Center for Law and Public Policy, since 1996 legal assistance in the United States has been “substantially curtailed” and, in some regions, “completely dismantled”. The Trump administration proposed completely defunding the Legal Services Corporation in March 2017. Perhaps DeVos’ concerns about students who have to, “without any legal training whatsoever”, “prepare an opening statement, fix exhibits and find witnesses”, should be used as a justification to increase funding for legal services across the United States. This way, millions of Americans who have to file for divorce, file for protection orders, defend their right to housing, and represent themselves in other matters involving their most basic human needs, can also have help navigating a complex and confusing civil legal system.  The solution to the lack of representation in Title IX proceedings is to provide each party with legal representation, not to jettison the process altogether.

DeVos and Title IX critics also decry the lack of training for the individuals administering the Title IX system, “who may or may not have any legal training in adjudicating sexual misconduct.” I agree with DeVos–“there is a competency gap here” when individuals who oversee these cases do not have proper training.  The same problem exists throughout the American legal system.  Judges, commissioners, justices of the peace, and others who adjudicate cases in the criminal justice and civil courts often lack current, comprehensive training on sexual and domestic violence. Why would we expect our universities and colleges to be any different?

DeVos should call for providing culturally competent, evidence-based training to anyone who oversees cases involving sexual and domestic violence, whether they be in the university/college, criminal justice, or civil legal systems.

This lack of training may be responsible for the incredibly low rate of help-seeking among college students who are sexually victimized. Only one in six college aged students get help from a victim-service agency[ii]. Just 20 percent of college students aged 18-24 report their sexual victimization to police, often because they feel that the “police would be insensitive and blame me.” That was certainly my experience in 1991.  Better training can help police to respond with greater sensitivity and less judgment in cases of sexual and domestic violence, enabling those students who want to use the criminal justice system to do so without the fear of being blamed for their trauma. Training has been and should continue to be an important part of Title IX.

In her speech, DeVos stated, “I wish this subject didn’t need to be discussed at all.” I wish it didn’t either. I wish sexual assaults didn’t occur. But they do occur, with shocking frequency, and we need to be thoughtful about how we address them. We should not dismiss the current process as a “kangaroo court” and abandon it altogether.  We should instead work to improve the process and ensure that all parties are well-informed, well-treated, and well-represented, so that the Title IX process provides a viable alternative to the criminal system.  We desperately need a process that is evidence-based, survivor-centered, respects the privacy of all parties, and provides resources (legal, medical, and mental health) to all parties involved. Abandoning the current system only makes it more likely that future college students will have experiences like my own.

Alesha Durfee is an Associate Professor at the School of Social Transformation, Arizona State University

— Photo by Wolfram Burner