"[T]he accusations — 90 percent of them — fall into the category of 'we were both drunk,' 'we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.'"
That's Candice Jackson, the top civil rights official at the Betsy Devos-led Department of Education, speaking to the New York Timesabout sexual assault on campus.
Jackson has since apologized for her comments, but even if she regrets her words, the sentiments she expressed seem to reflect a troubling concern of this administration: that perhaps students are lying about being assaulted, allegations are made in order to get revenge, and the accused are being unfairly punished.
This attitude reflects a significant shift from that of the Obama administration and should terrify anyone who cares about ending sexual violence on college campuses.
As secretary of education, DeVos is tasked with upholding the United States Education Amendments of 1972, which include Title IX, the federal civil rights law that prohibits gender discrimination at colleges and universities. The Obama administration recognized sexual harassment, sexual assault, and rape on campuses as forms of gender discrimination, and therefore, indicated they fell under the purview of Title IX. But since DeVos's nomination, there have been questions about how she'd handle this issue.
In April 2011, the Obama administration issued what is known as the "Dear Colleague" letter. This directive laid out guidance for universities on how to handle sexual assault and, among other things, strongly recommended a "preponderance of evidence" standard as opposed to the tougher-to-prove "clear and convincing evidence" that was previously used in cases of sexual assault and rape on campus. Critics of the "preponderance of evidence" (in which it must be determined more likely than not that sexual harassment or violence occurred) argued that this standard was biased against those accused and would result in far too many people being penalized for crimes they may not have committed. Supporters of the new standard pointed to the difficulty of proving a sexual assault occurred as well as the low number of false accusations in comparison to the incidences of sexual violence of campus. At DeVos's confirmation hearing, Sen. Robert Casey asked DeVos if she would commit to upholding the guidance in the letter and she said it would be "premature" for her to do so. When he asked her specifically about the "preponderance" standard, she dodged, saying assault is never OK and that she wanted to ensure "that the intent of the law is actually carried out in a way that recognizes both the victim, the rights of the victims, as well as those who are accused."
This might seem like a reasonable statement — be fair to everyone, right? — but it betrays a fundamental misunderstanding of what the Obama administration put in place and of sexual violence more broadly. The Obama administration, guided by the tremendous work of anti-sexual assault advocates and scholars, identified campus sexual assault as a problem we needed to confront head-on. Through its "It's On Us" campaign, the administration reiterated its commitment to ending sexual violence on college campuses and encouraged everyone to get involved. Noting how poorly many colleges dealt with sexual assault, this initiative compelled colleges to do better. "I'm working very hard with this incoming administration to convince them that this is, in a sense, the civil rights issue of our time," Vice President Joe Biden said before he left office. "It's the human rights issue of our time."
But rather than see the previous administration's work on this issue as something to build on, DeVos and Jackson seem to be approaching it with skepticism, worried that it puts the accused at a disadvantage. Jackson, for instance, told the New York Times that the guidance encourages colleges to relentlessly search for violations until they are found. (Catherine E. Lhamon, who previously held Jackson's position called this "patently, demonstrably untrue.") The Obama administration did not tip the scales in favor of the accusers — it attempted to make the system, in which too many perpetrators get away with their abhorrent acts and too many victims are scared to come forward, more fair and accessible. It offered guidelines for universities to handle reports in ways that acknowledge the realities of sexual violence. It indicates, for instance, that schools should be aware of the potential for retaliation against someone who files a complaint.
While there is considerable debate about the number of people who experience sexual violence on campus — the most commonly cited number is 1 in 5 — far too many students, primarily women, queer, and trans students, report sexual assault or rape as part of their collegiate experience. To suggest that there's a widespread problem of students just making it up is not only inaccurate — false reports account for approximately 2 to 8 percent of all reports of sexual violence — but also dangerous, as too many victims already worry about being believed.
And yet, this week, men's rights activists — the very people who deny that campus sexual assault occurs at alarming rates — were allotted the same amount of time to meet with DeVos as campus sexual assault survivors and anti-sexual assault advocates to discuss sexual violence at colleges and universities. This list included the Carolinas chapter of the National Coalition of Men, whose website says: "There is more of a false accusation culture than 'rape culture' on campuses." Let that sink in: Not only is the organization promoting lies about false accusations, they dismiss the painful reality of rape culture. And they had the ear of the secretary of education.
Under DeVos, the misguided emphasis on false reporting and campus overreach will roll back the incremental progress colleges and universities have made on ending sexual violence on our campuses. While it is important that rights of accused students, faculty, or staff members are protected, we cannot afford to have colleges be less accountable when allegations of sexual violence surface. At a time in which our current president has joked about grabbing "pussies" and reports of corrective sexual assault, a form of sexual violence enacted on LGBTQIA people to "make them straight" or "not be trans," are becoming more common, the DOE should be working toward making our campuses safer.
Students are vulnerable on college campuses. Their attackers can be other students or even faculty or staff. When there isn't a climate of institutions effectively and compassionately responding to these allegations, fewer students will come forward. We risk reverting back to antiquated notions of what even constitutes sexual violence. We still have a ways to go in the struggle to end sexual violence on campuses but we have to come too far to go back. The Department of Education has the power to change how colleges and universities handle allegations of sexual assault, making it even more difficult than it already is for survivors. This is a real possibility if they approach the issue with the idea that accusers are lying.
A drastic shift from compelling universities to more effectively respond to sexual violence on campuses to the Department of Education espousing victim-blaming rhetoric is a tremendous setback in the struggle to end sexual violence. Rampant sexual violence requires vigilance and policies that work to dismantle rape culture, not uphold it.
Survivors deserve better.
Treva Lindsey is the author of Colored No More: Reinventing Black Womanhood in Washington, D.C. Follow her on Twitter.