Justice is most often depicted as a lady. A woman with a blindfold on, carefully balancing a set of scales that proposes a system of justice that is supposed to determine guilt or innocence and mete out consequences is not biased in favor of either party. In the vast majority of the administrative, civil and criminal court systems protections are in place that do a pretty good job of ensuring this is the case. And there are procedures to examine or object to the initial determination.
Oddly, in one area activists who claim to support women, advocates are vocally advocating these protections be removed to the benefit of a select group of women. Recently, Secretary of Education, Betsy DeVos proposed new guidelines in for colleges and universities in evaluating claims of sexual harassment and assault. The guidelines restore a number of protections for the accused in the campus administrative processes that were stripped in the 2011 "Dear Colleague" letter.
Trent Cromartie, Director - Title IX Equity Project for SAVE - Stop Abusive and Violent Environments, believes these modifications are an important course correction. While they are very comprehensive, a couple of items he believes are crucial. First, the new guidelines ensure due process for both the accused and the accuser. It gives both parties the right to representation that can participate in the process, the ability to cross examine the accuser in a protective way and imposes notice requirements.
Next it clearly defines the type of behavior that rises to the level of a potential Title IX violation that would actually impair the ability of the university to provide equal access to education. It limits claims to alleged violations that occur on campus or at a school sponsored event. The behavior must also rise to the level of:
- Quid Pro Quo - sexual favors in exchange for some benefit
- Behavior that is severe, pervasive and objectively offensive
- Behavior that meets the threshold for sexual assault as defined by the Clery Act
Finally, the accuser must step forward and make a complaint to specific staff, namely the Title IX office. Just like your neighbor or family member is not can not report a potential crime against you to the police, reports to professors and other university do not require investigation.
All of these protections are provided to the accused in the criminal justice system and administrative law, such as sexual harassment claims that allege a violation of Title VII in the workplace. Yet the ACLU, The Women's March, NARAl and other women's advocacy groups are being very vocal in their objections to providing these protections to college age men. It simply defies logic that their objections make any sense in western legal tradition.
Alleged victims in any other setting would be subject to traditional due process procedures including being subject to cross examination by a representative of the accused. For some reason, these organizations are attempting to create a special, privileged victim class that can avoid substantiating their claims of what may be a serious charge.
No doubt they view this as a launching-off point, where if they are successful, they would look to seek similar protections for a particular class of crimes in the criminal justice and administrative law system. There are already training programs and groups that are trying to force the philosophy of "Believe All Women" into the law enforcement and criminal justice communities.
This is why it is critical due process for the accused be restored at the universities. The new guidelines are currently available for public comment which the Department of Education will use to refine the guidelines. Activist groups are providing templates and encouraging members to post comments in favor of removing the essential due process protections.
Trent acknowledges this revision is a hotly contested issue, but wants people to take a step back.
"People need to temper their outrage and take the politics out of it. Consider if you or someone you loved were in the position of the accused. Would you want every protection in the process to ensure they were treated fairly? We need to restore balance in this process that provides due process for everyone involved"
While we are not going to provide a script, if you are concerned about the issue of due process in these cases and wish to make a public comment, the period is still open. You may comment here until January 28, 2019. The Department needs to hear from concerned citizens as well as anyone negatively affected by the previous guidelines to include the accusers, accused and parents or loved ones. The due process protections being provided are fundamental to our system of justice and must be included.