Devos’ New Campus Rape – Sexual Harassment Guidelines

The administration’s proposed changes to campus sexual harassment guidelines are – mostly – wrong.

That doesn’t mean that the prior administration’s guidelines were any better. In a time when it seems like politicians and our government are pushing back against the #metoo movement, the government’s plan seems to be to make it easier for schools to ignore campus rape and sexual harassment without fear of liability.

Most commentary that I have seen on the issue is extremely biased towards one side or the other – it’s either “we need to protect the accused from lying victims,” or “the accused gets more rights at the expense of victims.”

Can’t we just recognize that: 1) victims need to be believed and protected, and 2) people who are wrongfully accused need to be believed and protected; and find a system that protects the rights of both sides?

We Already Have a Model for Campus Rape Guidelines

In South Carolina’s criminal courts, we have a criminal justice system that: 1) is not perfect; 2) often results in injustices; and 3) is the best balance of victims’ and the accused’s rights that has ever been accomplished.

We have a Bill of Rights with well-thought-out protections for the accused. They are guaranteed the right to hear the evidence against them, confront the evidence against them, and to due process. They can testify, or they can refuse to testify. They can present evidence in their own defense. They have the right to counsel who can advise them and help them to prepare their case.

In South Carolina, we also have a Victim’s Bill of Rights that guarantees rights to crime victims including the right to be informed about their case, the right to be present at any hearings, and the right to be heard.

Considering the high-stakes of disciplinary proceedings based on a sexual assault, colleges could easily look to the criminal courts to adopt a set of guidelines that protects both the victims’ rights and the rights of the accused.

The standard of proof could be preponderance of the evidence or clear and convincing evidence instead of beyond any reasonable doubt, and the case could be heard by a school official instead of a jury, but not much else would need to be changed…

What’s Wrong with Devos’ New Campus Sexual Harassment Guidelines?

A wrongful accusation of sexual assault or sexual harassment on campus can destroy a person’s life and future career. That’s why the rights of the accused must be protected.

A sexual assault + the knowledge that the rapist went unpunished or was even protected by the university causes untold psychological damage to a person and perpetuates a male-dominated university culture that encourages sexual harassment and assaults. That’s why allegations of campus rape or harassment must be effectively dealt with.

Any system that causes further trauma to victims, allows campus rapists to continue raping, or risks “conviction” of innocent persons is wrong, just like any system that allows a university to expel and permanently label an innocent student as a sex offender is wrong.

What’s in the new proposed guidelines that are problematic? Are there any parts of the proposed sexual harassment guidelines that are good for both victim and accused?

The Proposed Sexual Harassment Guidelines Narrow the Definition of Sexual Harassment

Obviously, campus rape or sexual assault is more serious in degree than sexual harassment on campus. Despite this, colleges have an obligation to prevent sexual harassment of any kind committed by students against other students.

The new sexual harassment guidelines define harassment as:

Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.

This would replace the previous definition which included:

Unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.

Are unwelcome sexual advances or requests for sexual favors no longer included in the definition? Or, they only count if they are “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity?”

Who decides that? The victim? A school official? Does it only apply if the victim is forced to drop out of school?

Schools are Only Legally Required to Investigate “Formal Complaints”

Schools would no longer be legally responsible for complaints of rape, assault, or harassment unless it is a “formal complaint” made to “an official who has the authority to institute corrective measures.”

Who is such an official and how would a victim know? What if they report an assault to a residential advisor in their dorm or a university professor?

The effect of this rule is to allow colleges to ignore rapes, assaults, and harassment.

If universities are serious about combatting sexual harassment on campus, they will have a system in place that requires any school employee to forward all complaints to “an official who has the authority to institute corrective measures,” and schools should be legally responsible if they ignore or fail to investigate complaints made to any school employee.

Schools Will Not be Required to Investigate Incidents that Do Not Happen on Campus

Off-campus locations include:

  • Off-campus housing;
  • Off-campus fraternity or sorority houses;
  • Local bars or restaurants; and
  • Off-campus parties.

Or, in other words, all the places where a sexual assault, rape, or harassment is likely to occur…

Eighty-seven percent of U.S. college students live outside campus bounds, and it’s common for assaults to take place in a student’s place of residence. Accusers at community colleges, where, in most cases, all students live off-campus, will be particularly affected by this clause in DeVos’s rules.

If a student rapes another student, but it happens in off-campus housing, does the University then have no obligation to ensure that the student rapist does not continue raping other students? Only if it happens in the on-campus cafeteria?

The Victim Must Agree to Be Cross-Examined by the Accused

Ok, this is a tough one.

In the criminal courts, every accused has the right to confront the witnesses against them. There is no way that a fair and just process can reach the truth without this guarantee.

But, in most cases, the accused is not really the one cross-examining the alleged victim in their case. Most do not know how to cross-examine in the first place, and a pro se cross-examination often becomes an angry argument with no hope of finding the truth.

Outside of a criminal court, it is not fair or reasonable to require a victim of a recent sexual assault to be retraumatized by submitting to an inept cross-examination by the accused.

In criminal cases, the accused will usually have an attorney who cross-examines the witnesses. In campus disciplinary proceedings for alleged sexual assaults, the stakes are high enough that the accused should have an attorney who can question the alleged victim for them.

Even allowing the accused to submit their questions for a school official to ask the alleged victim would preserve the accused’s right to confront the witness and test the evidence without subjecting victims to potentially abusive or traumatic conduct.

Innocent Until Proven Guilty

“The regulations require that schools approach all investigations under the presumption that the accused is innocent until proved guilty.”

Need I say that this is a good idea?

Campus Rape in Charleston, SC

Rape on campus is a violent crime that must be reported to the federal government for statistical purposes – reported campus rapes for SC universities from 2014 through 2016 show College of Charleston in the lead:

  • SC State: three;
  • The Citadel: six;
  • Winthrop: 11;
  • Clemson: 16;
  • USC: 10; and
  • College of Charleston: 25.

Charleston, SC Sexual Assault Defense Lawyer

Grant B. Smaldone is a Charleston, SC attorney whose law practice is focused on criminal defense, including allegations of rape/ criminal sexual conduct (CSC).

If you have been accused of a sexual assault on campus, your case at the school can affect whether criminal charges are brought against you and the outcome of those charges. Do not discuss your case with anyone until you have spoken with an experienced sex crimes defense lawyer.

Call now at (843) 808-2100 or fill out the contact form on our website to set up a free, confidential consultation about your case.