While you know someone has accused you of something, your accuser has the right to remain anonymous and you are not allowed to have any legal representation during the evaluation of the claims against you. A relatively inexperienced college administrator in a Title IX office will be in charge of the process and will also decide who speaks on your behalf. And there is no standard other than the adjudicators in the process believing your accuser at a level of 50% plus a feather that could end your education at that institution and put a note in your permanent file that will brand you as a risk to any other institution you apply to.
This is what young men across the country have faced since the 2011 Dear Colleague letter according to Michelle Owens, an attorney and social worker in Tennessee. She has stood by as an outside advisor to numerous young men confronted with the procedural fallout from the letter. She advises them outside of the process because she is not allowed in the interviews. In fact one college administrator said during one of the proceedings she was involved with that they “liked the attorneys to act like potted plants”.
Despite the challenges in the process, Ms. Owens has had a great deal of success in getting her clients relieved of the administrative charges levied against them. She attributes this to having a social work background in addition to being an attorney and being able to prepare her clients and their witnesses thoroughly. Ms. Owens also serves as a spokesperson for Stop Abusive and Violent Environments (SAVE). She is pleased at Secretary DeVos rescinding the Obama era guidance, but says there is more work to be done. The interim guidance does not address the full scope of needed changes and SAVE advocates for a return to due process protections to protect not only the accused, but victims as well.
The primary problem with the Obama era guidance according to Ms. Owens is that it redefined sexual assault on college campuses. In cases she has handled the term sexual assault has been used to describe things such as touching on the shoulder and unwanted flirting. Perhaps most disturbing is that the vast majority of her clients were in relationships with their accusers that ended anywhere from two to eighteen months prior. Many times they had 100’s of interactions with their accuser and often no idea which of these the complaint arose from. She has also seen what could be typically referred to as bad manners from continuing to flirt when someone is not interested to having sexual relations with another person during the course of a relationship be handled through sexual assault charges and the Title IX office on campus. What used to get you labeled as a jerk that would have a hard time getting a date can now get you suspended and a notation in your transcript.
It also doesn’t help that every college has a different definition of what rises to the level of sexual assault. In many cases the list of behaviors under this definition do not rise to the level of criminal behavior and she sees many cases in which the accuser just wishes to rid themselves of having to deal with someone that has embarrassed or upset them. Ms. Owens acknowledges that there are cases of sexual assault and rape on college campuses that meet the legal definition of a crime. These are not the cases that she typically sees being handled by the Title IX office on campus.
Further in cases where a sexual assault rises to the level of criminal behavior, a college office can not impose legal penalties such as jail time or require an individual to register as a sex offender. So while the process may remove the individual from the campus, it does nothing to protect women outside that environment from being assaulted. One must wonder why the feminist movement and Senators Gillibrand and Feinstein are okay with a scenario where a college campus can release an actual predator back into society without involving the criminal justice system. It’s essentially as if all of these proponents are looking to create a special class of victims on college campuses by infantilizing young women to be incapable of dealing with common relationship and dating issues, such as cheating while allowing actual predators to escape law enforcement.
While SAVE and Ms. Owens are pleased at Secretary DeVos’ first steps in the process, they feel the interim guidance leaves some room for improvement to help victims and and the accused receive due process. First, like in every other case of federal law or regulations, there must be a consistent set of guidelines as to what constitutes sexual assault on a college campus that more closely follows the legal definitions of a crime. Ms. Owens says some schools have gone so far overboard in the definitions, the simplest of traditional dating rituals can arise in a complaint if the accuser says they are unwanted. While the new guidance reminds schools that the definition of hostile environment is sexual misconduct that is “severe, persistent, or pervasive”, these criteria need to be standardized so colleges and universities better understand what is expected.
Next, the interim guidelines provide for mediation. Mediation is used for problems with interactions, not to resolve an issue of criminal sexual assault. This fact that this is allowed on a case by case basis under the interim guidelines is a demonstration of how far outside the legal definition of sexual assault many campuses have gone. SAVE also encourages the referral of felony level cases to local law enforcement, whenever feasible. The criminal justice system provides 28 protections to identified victims that are not available on campuses.
Finally, SAVE advocates a system that provides consistency in training in the process of investigations for campus resources. Many Title IX investigators are entry level college administrators with limited background in investigation or due process. Having expert support would improve the process for both victims and the accused.
Ms. Owens adds that some of these changes may be forced by civil court actions. In her home state of Tennessee, the 6th Circuit recently ruled that colleges can be sued for failing to follow their own campus handbook policies and procedures, as it constitutes a due process violation. These cases are becoming more common as other courts have made rulings similar to the 6th Circuit. She adds it is far from an ideal solution though. For someone who was wrongly convicted through the campus process, a court case can take up to two years during which their education is essentially on hold. Further in the case of a victim who was sexually assaulted, they will usually be the chief witness for the school and be deposed at length forcing them to relive their experience.