Title IX and the University’s New Policy: Is this really “just?”

Got someone at school who you really despise and wish had to leave the school? No worries, you can just charge them with sexual assault!

No, it’s not automatic or really that easy. However, it doesn’t mean that the new university sexual assault policy is anything but a ridiculous joke. The new policy is outlined in a 21-page document linked here. It is full of legal jargon and relatively meaningless qualifiers. But luckily for our readers, I took the liberty of combing through it for you.

Under the new policy, confidentiality is at such a premium that the university has determined that should he/she so choose, a student bringing a sexual assault complaint against another student or faculty member can have complete anonymity. Simply put, a student (called the “Complainant”) may accuse another student or faculty member (the “Respondent”) of sexual misconduct and the university can investigate the matter and take administrative action against the accused without the accused ever knowing who accused them.

Why? Because, as Michael Castleberry, Chair of the Faculty Senate explains, “The whole idea that a woman who has been sexually assaulted has to go in and confront the accuser hurts the healing process. The University’s code has to reflect those kinds of changes.”

I’m no expert on sexual harassment/assault cases, but I would think that confrontation for the purpose of ensuring justice would actually help the healing process. Regardless, this raises a number of problems. First and foremost, it violates our constitutional rights to a fair trial, as guaranteed by the Sixth Amendment. Of course, the idea of forfeiting constitutional rights shouldn’t be anything new to GW students. We did it the second we moved into university housing freshman year. We waived our right to the protections of the Fourth Amendment (searches & seizures); those clowns who waddle/bike around the university in yellow shirts have the right to walk in and flip your dorm room whenever they desire.

Then there are the sheer logical problems that arise from the concept of conducting an investigation without properly hearing both sides of the story. Under this new policy, if the administration so chooses, the respondent may be placed on suspension while the university conducts its own review and investigation.

“Sir, I’m sorry, but we’re going to have to place you on suspension.”

“For WHAT??!!”

“Possible sexual assault.”

“WHAT?? WHEN??? AGAINST WHOM??!!”

“Well, we can’t exactly say due to confidentiality reasons.”

It’s a complete joke. How does the university honestly expect to carry out an honest and thorough investigation if it cannot tell the accused individual important and specific information? What, is it going to question that person on his activities during a three-day period during which the alleged offense occurred? Won’t it be obvious enough to the accused based on the administration’s line of questioning what the charge is and which individual is bringing the accusations?

Then there is the issue of the administration treating students like middle-schoolers. With the exception of some freshmen, college students are legal adults. If a serious sexual assault takes place anywhere other than campus (or even on campus) it can go to trial and the offender can go to jail for a very long time. But in that judicial process, the defendant would at least get to find out the identity of the accuser. And the accuser would have to actually face the perpetrator. If that is the case for the legal systems of the great fifty-seven states of America, how come it isn’t good enough for the university?

The answer is that beloved document, Title IX (now robbing schools of not just sports teams but fair judicial processes too!). These confidentiality measures were outlined in an Obama administration “Dear Colleague” letter issued in April of last year. The document actually highlights the difference between what the judicial system considers criminal activity and what Title IX considers criminal activity: “Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinate of whether sexual harassment or violence violates Title IX.” Ignore the facts; they might get in the way of a Title IX conviction.

It gets better. The document actually downgrades the standard for violation of the Title IX clauses, so much so that they don’t even come close to any accepted legal standard. It requires that schools use a “preponderance of evidence” standard when investigating accusations of sexual harassment or violence, “(i.e., it is more likely than not that sexual harassment or violence occurred).” Because the current standard used by schools, which is a little stronger than this one but still not the legal standard, is much too stringent:

The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

In other words, as soon as there is more evidence that the offense was committed than wasn’t  the university should assume it happened and act accordingly.

To be fair, the documents point out that if the accuser requests confidentiality throughout the university’s investigation, the university’s ability to respond “may be limited,” and the point is supposedly to protect the students and promote a more harmonious atmosphere. I’m still trying to find the part of the document where the accuser receives a unicorn as consolation if the university determines a violation occurred.

But it doesn’t change the fact that the system has enormous potential to be egregiously unjust. If a man or woman were a good actor and conniving and evil enough, they could very easily succeed in having an individual dismissed from the university. If not that, then they could at least cause them a major hassle and potentially ruin their reputation on campus – not that they would, but the fact that the potential exists is extremely troubling.

I’m not condoning sexual crimes nor taking anything away from the many real complaints and cases where sexual assault does occur. If that is the case, then the university and the government should take the appropriate disciplinary standards. The problem is that the methodology for reaching that conclusion is incredibly flawed.

Rape and related sexual assault is already one of the few crimes in America in which, according to societal perception, a man is guilty until proven innocent. Obviously, it should be the other way around. A university is an institution of higher learning. How come ours has to accept lower judicial standards?