This article originally appears in the NY Daily News. You can read it in its entirety here.
Secretary of Education Betsy DeVos has made changes in Title IX that are designed, in the words of her office, “to restore due process” to the way colleges handle sexual misconduct and assault cases. Far from achieving that goal, however, DeVos’s revisions tip the scales in such cases against traumatized victims and in favor of the accused. Her effort to create a level playing field will have the opposite effect.
I say this as a woman who was raped nearly 40 years ago and who has devoted her life since then both to helping women who have been assaulted and to establishing programs in schools and colleges that help reduce sexual assaults, bullying and hazing.
I know in a deeply personal way how horribly life-changing it is to be the victim of a sexual attack. How it fills you with fears that can become overwhelming. How some details of the attack are forever locked in your memory while other can become confused and uncertain. How the shock and pain never fully leave you.
I know all this from my own experience, and I know it from the conversations I’ve had with scores of young women who have suffered through their own nightmares. Every case is different in its specifics, but all of them inflict the same enduring emotional scars.
There are many points to criticize in DeVos’s rules changes. One is that they essentially impose a one-size-fits-all system on colleges and universities for handling cases.
Another is that they have been given the force of law and so only an act of Congress can change them — highly unlikely in today’s deeply partisan Washington. If the secretary wants to bring about change on campuses, why not issue guidelines and recommendations to allow the flexibility that these complex, highly individualized cases require?
What’s more, the changes, which are scheduled to go into effect on Aug. 14, put a gun to the heads of college presidents, since to refuse to abide by them could mean losing whatever federal funds the school receives. What administrator can afford to take that risk, especially when the pandemic is having such a ruinous impact on college finances?
But because of my own personal history with sexual assault, I want to focus on what I consider the most egregious of the rule changes, the requirement that colleges adjudicate claims of sexual assault through live hearings. During those hearings, the accuser and the accused can be cross-examined by an intermediary — almost invariably this will mean a lawyer — who can challenge their credibility.
This is the provision that pleases supporters of the DeVos changes the most. They believe too many young men have been accused and punished without being given a chance to confront their accusers, or in some cases even to see the evidence against them. The live hearings, they think, will correct this unfairness.
The evidence for such miscarriages of justice is sketchy at best. But to the extent they do exist, there are better ways of fixing the problem than putting traumatized young women in a witness box. In fact, the only people who can believe that such a step is justified are people whose lives have never been touched directly or even indirectly by the sickening aftershocks of an assault.
They do not understand that, as I said, the mind becomes confused, even chaotic, and so some of the details given in an initial report to a hospital or to the police or to a campus official may not match exactly what the victim remembers when she’s being cross-examined at a live hearing. A skilled attorney may insist that any such inconsistencies “prove” she’s lying. That completely ignores the nature of post-assault trauma.
And this will happen in a system that still tends to blame the victim. She drank too much at a frat party, her clothes were too sexy, she flirted too much — we all know the excuses. How many young women who have been subjected to that will have the emotional strength to survive of one of DeVos’s live hearings? How many will drop the charge, or never bring it?
The Obama administration’s recommendations for handling assault cases issued in 2011 were less than perfect. But far better to fix them than to impose new rules that make a bad situation far worse.