New US Sexual Misconduct Rules Are Designed to Deter Survivors From Reporting

Janine Jackson: Headlines can do a lot of work. Take the August 29 New York Times news story, for example, headed “New US Sexual Misconduct Rules Bolster Rights of Accused and Protect Colleges.” Readers are tipped, you might say, that previous to proposed rules by Education Secretary Betsy DeVos, those accused of rape, sexual assault or harassment on college campuses had weak or inadequate rights, and that colleges faced some sort of danger or vulnerability, presumably to being unfairly portrayed as places where such acts occur.

What’s missing between the prevalent presentation of new rules on sexual assault in schools as a common-sense move towards fairness, and the fact that no sexual assault survivors’ representatives were on the guestlist when Betsy DeVos announced the new rules? Maybe what’s in between is real life?

We’re joined now by Alyssa Peterson; she’s policy and advocacy coordinator with the group Know Your IX, a survivor- and youth-led project that aims to empower students to end sexual and dating violence in their schools. She joins us now by phone from Connecticut. Welcome back to CounterSpin, Alyssa Peterson.

Alyssa Peterson: Thank you so much for having me.

We’ll get to particular elements of these proposed rules, but first I just wanted to ask you to address the real-world context of this intervention of Education Secretary DeVos’ declaration:

Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined. These are non-negotiable principles.

Putting those forward as twin tenets suggests the definition of the problem that’s being addressed here, and I just wonder how closely you think that hews to reality.

I think that her rules do not address what she’s talking about, because they do not take survivors’ experiences seriously. We don’t know what the final rule will look like, but letting schools off the hook for abusing survivors of sexual assault is not a way to protect their access to education. And generally the rules have the effect of allowing schools to not be held accountable for violence that is perpetrated off campus, particularly with respect to fraternities. And then, also, the rules are crafted to discourage survivors from coming forward, and endow accused students with procedural rights that are not given to survivors, which is effectively stacking the deck against survivors, who need their perpetrators disciplined in order to stay in school.

What is it about the rules in particular? They seem different in the kind of evidence they require, and the amount of appeals that they allow, but what are some particular elements that you say stack the deck?

The most concerning aspect is allowing schools to not, as I mentioned previously, address harassment off campus. These rules are particularly ill-timed, given that Michigan State University and Ohio State University, in both of those cases, Dr. Strauss maintained a personal office off campus which he used to abuse students, and then Nasser would routinely abuse gymnasts at a facility associated with the US gymnastics team off campus. In Betsy DeVos’ vision, the school should not be held accountable for those abuses, even if they’re perpetrated by people who are affiliated with the school. So the off-campus piece is, for us, one of the most concerning aspects of the rule.

We’re also concerned that the rule is designed to deter people from reporting. For example, the rule would permit people who are accused of rape to directly cross-examine the survivor, which is extremely intimidating, and for many people, myself included, would deter someone from going through a disciplinary proceeding.

And previously the Obama administration tried to strike a balance, by allowing the accused student to ask questions of the survivor through a hearing panel, which was intended to allow for a full examination of the issues, while making sure the survivor would not be too intimidated to participate. But at this point, that balance has been removed, so it’s effectively discouraging survivors from seeking discipline.

And then, as you mentioned, there are these inequitable procedural rights that are given to accused students and not survivors. For example, one such procedural right is, only accused students can be allowed to appeal, and because Title IX’s a civil rights law, in a civil proceeding, both parties are always allowed to appeal, and because survivors experience procedural violations in the same way as accused students, there’s no reason why they should not also be able to appeal.

Thank you, and I think there’s a real absence of data, frankly, in the news stories about it. And so, when you just get Betsy DeVos saying, “Well, survivors of sexual misconduct have to be taken seriously and those accused of sexual misconduct have to be taken seriously,” it presents an idea that this is a corrective, and it’s a corrective to a scenario in which, to put it simply, lots of women lie about being assaulted, and we need to check their ability to do that, because they’re abusing that ability. And so I just want to ask you, in terms of everything we know about campus sexual assault and assault in schools, it sounds like a solution without a problem.

Yes. What we do know is that one in five college students, and a large number of high school students, will experience sexual violence in education, and that statistic has been replicated — there was a national survey of 27 different colleges, there’s been national surveys conducted generally — the one-in-five number, or even one-in-four, appears to be the prevalence number.

By contrast, some schools have reported how many students they discipline a year. Many times it’s fewer than ten, and when you think about the prevalence rate of sexual violence, and then the drop off in the survivors who come forward to report the assault, then the survivors who go through the disciplinary proceedings, and then the number of people found responsible, they’re completely different, and for DeVos to focus on fear of over-discipline as the same level of magnitude as prevalence of sexual assault, it’s just misleading.

But for our part, we are deeply concerned that both survivors are not getting fair hearings, but also, we don’t think that anyone should be disciplined if they did not perpetrate sexual assault, so Know Your IX has consistently and continues to call for strong procedural rights for both parties, whereas Betsy DeVos only wants strong procedural protections for accused students.

What did you make of the change — or is it a change — in the definition of harassment? It seems to be saying things only rise to the order of action if it makes it impossible for a person to access their education.

That’s another way for Betsy DeVos to restrict the number of complaints received by the school. It actually somewhat mirrors precedent when people sue, and very few people are successful when they sue their school. So for us what was important is that the Office for Civil Rights took a broader view to the types of harassment that can compromise students’ education, and when the Department took that view and enforced it, schools took violence seriously, and acted proactively to put steps in place, whereas under these current standards, schools are not incentivized to do much to help survivors, because they can do very little and satisfy the standard proposed by the DeVos administration.

One of my complaints about the broad-strokes nature of media coverage is that there are a lot of unattributed claims, things like, “College leaders have long complained that the previous regulations were too broad.” And those would be rules around what a school or an institution can be said to have known when things were happening on campus. I wonder what disincentive is in place for a school to just never know what’s happening, because we understand that it’s a PR thing. Clearly, if you’re known as a campus where assaults have occurred, that matters to what is an organization that wants to keep going. But I just wonder, if you lower the standard of when a school is said to have reasonably known what was going on, where’s the disincentive there for them just to never report?

I think there’s a strong incentive to avoid knowledge. In the current structure, schools are required to have their employees pass on reports of harassment and assault to a Title IX coordinator, which will then trigger a school’s legal obligation to respond, to correct the hostile environment created by the abuse.

At this point, they now have an incentive to deter the mid-level reporters from passing on information, because they don’t actually want to know about the extent of violence on campus. They also perhaps have now an incentive to avoid doing climate surveys, because that actually provides them with information that could be used to establish that they knew that there was a climate of violence on campus.

So as in the same way that Betsy DeVos has given massive giveaways to for-profit school and allowed schools to discriminate against kids with disabilities, this is yet another way to empower the higher ed lobby at the expense of the civil rights of students she’s in charge of protecting.

You’ve said that Know Your IX is invested in the rights of people accused of sexual assault, and although that’s one of the things that I dislike so much about media, is the way they seem to present the zero-sum frame, where women who don’t want to be assaulted are a special interest group, and it just makes sense to balance their claims with other interest groups. I wonder, stepping outside that framework, what would good policy look like, do you think?

The department has to do more to hold schools like Baylor, Michigan State and Ohio State accountable. It’s clear that under the current enforcement scheme, they did not feel the pressure to stand up and protect students from serial abusers. And what is happening right now is that the department is closing investigations left and right, in trying to exempt campuses from dealing with violence that occurs by students enrolled in the program but off campus.

And in order to correct that, the department would have to hire more staff and engage in systemic enforcement, which Betsy DeVos has specifically declined to do. And then I also think a better policy would hold schools accountable when they violate the rights of accused students and survivors. And that requires having strong procedural protections for both parties, and holding schools accountable when they violate them.

For example, the Obama administration found a school not compliant because they did not respect the rights of the accused students. And the Obama administration also found schools not compliant for disrespecting the procedural rights of survivors. So for me, it’s a question of, how can we create strong procedural rights that test the evidence while not traumatizing students who participate, and then create the transparency so we know what are the outcomes of these adjudications, and are there disparities for race discrimination, for both survivors of color who come forward and accused students of color, in these proceedings?

Yeah, that actually reminds me: Right before I started to talk to you, I saw a show, a Making Contact show, that was talking with folks from historically black colleges and universities about sexual assault on their campuses. It’s yet another aspect of the issue that seems to be largely missing from corporate media’s coverage, even though they kind of play a race undertone sometimes, like we talked about last November. So let me just ask you, finally, what would you ask for from reporters, more of, or less of, or any thoughts about the way this issue gets covered?

The HBCU issues fit into the problem that a certain survivor’s perspective is covered, and it’s covered to the extent that the reporter will actually impose their view of how an ideal survivor would behave on Know Your IX organizers. Within our team, we call that “fitting the survivor slot.” And the person in the survivor slot, it’s almost always a “she,” this person’s incredibly vindictive, and there’s no room for the survivor to feel ambivalent about punishment for the person who raped them, or critical of using the criminal justice system that harms survivors and people accused of sexual assault. There’s no room for a more complicated conversation about what more accountability looks like. And that particularly applies to students of color, who face competing pressures about knowing that the police will deal with their perpetrators in ways that are racist, but trying to find accountability and safety within their own communities. But the default survivor narrative doesn’t create space for that kind of conversation.

I think another recent fall in reporting has been reporters’ decisions to treat feminists as a homogeneous group. I don’t know if you saw there was an article on Professor Ronell at NYU, where a number of prominent feminists, like Judith Butler, have come forward to defend her. And when a prominent news outlet reported on the story, they actually lumped in a Know Your IX organizer as supportive of the feminists who were defending the professor accused of harassment. And they just assumed that feminists stand with other feminists, even when they abuse and discriminate against students. And that couldn’t be farther from the truth, and, in fact, the more accurate story would have described the support among feminists for the male student who alleged harassment.

In sum, a lot of journalists, in the service of tying up a story neatly and putting a bow on it, rely on stereotypes about how victims behave, in a really sort of flattened ideological conflict between feminists. And I think it’s important that we have more nuanced conversations on this issue, and that reporters participate in that project.

We’ve been speaking with Alyssa Peterson. She’s policy and advocacy coordinator at Know Your IX. You can find their work at KnowYourIX.org. Alyssa Peterson, thank you so much for joining us this week on CounterSpin.

Thank you so much for having me.