On Thursday, Secretary of Education Betsy DeVos issued a stark rebuke of Obama-era guidance that had directed the nation’s schools to actively investigate and prosecute campus sexual violence under Title IX, which prohibits sexual discrimination at federally-funded institutions.
“The era of ‘rule by letter,’ is over,” DeVos said, referring to a controversial “Dear Colleague” letter sent to America’s college and university presidents by the Obama Administration’s Office for Civil Rights in 2011. The letter threatened their institutions with loss of federal resources if they did not deploy an aggressive posture against campus sexual violence, including adopting a “preponderance of the evidence” rather than a “clear and convincing evidence” standard for the adjudication of sexual assault cases, as well as adopt elaborate procedures of their own outside of local law enforcement to investigate and prosecute Title IX-specific violations.
In her remarks to an audience at George Mason University in Northern Virginia, DeVos called sexual acts of misconduct “reprehensible, disgusting, and unacceptable. They are acts of cowardice and personal weakness, often thinly disguised as strength and power,” but warned that the previous administration fell down on the job when it came to giving schools the tools to combat the violence. She relayed a litany of examples in which accusers—and accused—were left to navigate a confusing, often unfair system that brought no feelings of true justice to either side.
“Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against the schools and against students,” she said.
She stressed examples of false accusations, and instances in which schools applied Title IX harassment standards to questionable complaints, mostly based on speech. She quoted parents and former students whose lives had been destroyed by investigations that relied on uncorroborated evidence and the “preponderance of the evidence” standard. In some cases, DeVos charged:
The right to appeal may or may not be available to either party. And no one is permitted to talk about what went on behind closed doors.
It’s no wonder so many call these proceedings “kangaroo courts.”
“The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims,” DeVos added.
Beginning in the early 1970s, states began to enact “rape shield laws” designed to shield complainants in rape cases from being questioned about their sexual histories. Although these laws were an exception to modern developments making most evidence freely admissible subject to arguments about their weight and relevance to a case, they were readily accepted because of the universal abhorrence of rape, and the fact that there was almost invariably corroborating evidence of physical injury in rape cases, limiting the danger of wrongful convictions.
Rape makes up 33 percent of college-age female sex assaults, according to the Department of Justice figures for 1995-2013. According to a 2015 poll of 1,053 current and past college students, heavy drinking is one of the most significant predictors of sexual assault in college. According to the Washington Post poll:
Analysis of the results found that women who say they sometimes or often drink more than they should are twice as likely to be victims of completed, attempted or suspected sexual assaults as those who rarely or never drink. Several male victims also pointed to alcohol’s role in their assaults.
The increase in both binge drinking and sexual assault complaints on campus have tested the spirit of the shield laws, not to mention the higher standards for consent and lower standards of evidence demanded by federal government under Title IX. All combined can send a typical “he said, she said” case down a perilous path to false conviction.
In order to facilitate convictions, advocacy groups, in connection with the American Law Institute’s revision of its Model Penal Code, have urged other legal changes, including requirements of explicit verbal consent, stiffer felony penalties even for non-violent offenses, and dilution of the required mental state. For example, one proposal (rejected by the Institute’s membership) would have allowed convictions for rape, not so long ago a capital offense, where the defendant’s alcohol-fueled mental state was reckless rather than intentional.
Furthermore, advocacy groups, aided by the Department of Education’s Office for Civil Rights, have undertaken to bypass recalcitrant police, judges, and juries by requiring colleges and universities to set up new and highly expensive administrative apparatuses to pass on student complaints, with the power to expel and ruin the careers of respondents. As mentioned before, they function on the basis of a “preponderance of the evidence” standard, rather than the “proof beyond a reasonable doubt” required by ordinary courts in criminal cases, or the “clear and convincing evidence” required in fraud and professional discipline civil cases, with lifelong consequences for defendants. For good measure, many institutions, with the acquiescence of the Obama-era Office for Civil Rights, deprive the accused of the right of cross-examination.
This lower evidence standard in “he said, she said” cases where there is no evidence other than that from the parties involved, causes judgments to turn on personal likability, their trouble-making potential, or the vociferousness of their supporters.
Meanwhile, college administrators, a timid lot, have been quick to buy their peace whenever there is a controversial incident by hiring thousands of new rape crisis counselors, victim advocates and investigators. This was the immediate response of the Presidents of Duke and the University of Virginia to allegations which proved to be false.
DeVos wants to put the brakes on this train however, suggesting schools can develop a model in which they work directly in “Regional Centers,” enjoining prosecutors and local law enforcement to investigate cases that rise to the criminal level, avoiding the tribunals that charge and prosecute students “based on hearsay or incomplete evidence.”
Some of our greatest jurists, including in different ways those frequent adversaries, Justices Jackson and Black, have reminded us that our liberties rest more on procedural guarantees than on substantive rights conferred by the Constitution. The toxic combination of vaguely defined offenses, draconian penalties, rules excluding controversial evidence, and coercible tribunals, is a recipe for nullification of the procedures defined in the Bill of Rights, designed to empower prosecutors and compel plea-bargaining even by the innocent, that can be applied to any form of undesired activity, not merely sexual assault.
The writer, President of the Library Company of the Baltimore Bar and a frequent visiting fellow of Wolfson College, Cambridge, has been an active participant in the American Law Institute’s discussion of sexual assault issues.