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Title IX is under threat, even as 2018 is heralded as The Year of the Woman

The U.S. government is taking deplorable action that will reduce women’s willingness to come forward and will increase men’s impunity for sexual crimes against women.

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Ellen J. Kennedy

NBC, CNN, Vox, The New York Times – the media is heralding 2018 as The Year of the Woman. Yes, women won seats in 2018 elections at record levels. But what’s happening underneath this political surge?

The president of the most influential nation on the planet has trumpeted pussy-grabbing. A nominee for the highest court in our land was credibly accused of sexual assault – and was confirmed for the position anyway, since boys will be boys. More than 200 major figures in television, movies, business, the media, politics, and sports were outed and ousted, but they were rarely prosecuted for their predatory behavior.

Rape occurs at epidemic levels in this country. In the United States, one in four women will be sexually assaulted during their lifetimes. In one recent 24-hour period alone, more than 12,000,000 women shared online #MeToo stories of their personal victimization.

In Minnesota, there were an estimated 6,915 rapes in 2015 – and 53 convictions, meaning that 6,847 rapes in that one year were never brought to justice. An AP report on Friday, Dec. 28, noted that, according to FBI data, the national “clearance rate” for rape cases fell to its lowest point since at least the 1960s because not enough resources are devoted to investigating sexual assault, the second-most serious crime in the FBI crime index.

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The Centers for Disease Control and Prevention estimates that 684,000 Minnesota women will be raped, stalked, or experience violence from an intimate partner in their lifetimes.

The Star Tribune’s recent series, “Denied Justice,” highlighted the egregious failures of Minnesota’s criminal justice system to take survivors’ experiences seriously, to treat survivors appropriately, and to commit to the same standards and procedures for investigation and prosecution of rape as with other crimes. There has now been a review of policies and practices throughout the state. This review described police disregard for, and in many instances, the outright humiliation of, survivors; the unwillingness to prosecute male perpetrators; and the appalling lack of appropriate services to address the lifelong physical and psychological trauma that these crimes create.

The anticipated outcome of this investigation is that Minnesota’s victimized women will receive some of the justice that they deserve.

But at the same time that this vital Minnesota self-scrutiny is occurring, the U.S. government is taking deplorable action that will reduce women’s willingness to come forward and will increase men’s impunity for sexual crimes against women.

Led by Betsy DeVos, secretary of the Department of Education, this is happening almost under the radar. What is she doing? Rolling back Title IX.

Title IX of the Education Amendments Act of 1972 is a federal law that prohibits sex discrimination in any educational institution receiving federal funding. In 1994, the Education Department’s Office for Civil Rights applied the law to sexual assault on campuses. This requires universities to investigate and adjudicate sexual assault cases. However, the rates of assault on campus did not decline.

In 2009, a study looked at 10 years of sexual assault complaints filed under Title IX. The results? Students who were responsible for sexual assault faced almost no consequences. Disciplinary actions were minor: counseling, community service, probation, or even no action at all. Sexual assault survivors faced the harshest punishment: seeing their rapist on campus every day. Title IX was failing.

In 2011, the Obama administration issued a “Dear Colleague Letter” to reinforce the requirement that schools investigate sexual assault.

The goals were to set out victim-centered standards, encourage reporting, increase the availability of victim support services, and shift the campus culture to one that emphasizes consent for sexual activity.

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The Dear Colleague Letter also established rights and protections for accused students, including due process, equal opportunity to present witnesses and evidence, timely access to information used in the hearing, an impartial investigation and hearing process, and an appeals process.

The Letter required schools to use a “preponderance of evidence” standard in deciding sexual assault cases. This standard sets the burden of proof as “more likely than not,” or more than 50 percent likely, that something occurred. This standard, used in civil cases and all discrimination cases, gives the benefit of the doubt to the victim.

In September 2017, DeVos announced that the Department of Education was rescinding the Dear Colleague guidelines and will establish new Title IX requirements.

The department issued interim guidelines that are likely to become permanent.

  • Schools can decide sexual assault cases using either the “preponderance of evidence” standard OR a “clear and convincing evidence” standard, a stricter standard that will make it harder to hold perpetrators accountable for assaults.
  • Colleges can use mediation in sexual assault cases. Mediation means that the accused and the accuser negotiate with a third person about how to resolve the case. Mediation is highly inappropriate. Sexual assault survivors should not have to “work through” their assault with the accused.
  • Campuses can choose to offer an appeal process only to accused students, not to both parties. This gives the accused a significantly unfair advantage.
  • The definition of sexual harassment is narrowed to exclude most off-campus assaults, even though many campus activities occur away from campus. This will greatly reduce the number of incidents actionable under Title IX.

These revised policies focus on the accused, not on the victims. These policies will intimidate victims from coming forward, make it harder to report harassment or assault, and will make it less likely that schools will provide victim services.

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These proposed regulations are not official yet. They have to go through a public comment process that ends on Jan. 28. This comment period intentionally occurs over the period of schools’ winter breaks, when campus communities are less likely to be available to talk about Title IX.

Submit comments urging support of the Dear Colleague standards. To do so, go here.

The most helpful comments are personal stories of how the proposed regulations would have affected your life or the life of someone you know. This was the focus of the Star Tribune series as well: the personal, powerful story.

In October, 41 members of the House of Representatives in Washington introduced House Resolution 4030, known as the Title IX Protection Act. This would codify into law the Dear Colleague letter. This bill didn’t pass in the legislative session that ended on Jan. 2; there was no companion bill in the Senate.

Support a new bill. Ask Sens. Amy Klobuchar and Tina Smith to introduce a bill like HR 4030 in the Senate. Call your representative in the House and ask him or her to re-introduce HR 4030. Use the toll-free number 844-872-0234. Simply enter your ZIP code and you’ll automatically be connected to your senator and representative.

We hope to see a similar bill in the 2019 Minnesota legislative session.

Minnesotans are responding at the state level. We must not allow justice to be weakened by the federal government.

Ellen J. Kennedy is the executive director of World Without Genocide and an adjunct professor at Mitchell Hamline School of Law in St. Paul.


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