New Rules Would Discourage Colleges From Investigating Rape Accusations

Students walk in the rain on the Penn State main campus in State College, Pennsylvania. (AP Photo / Gene J. Puskar)

The Department of Education says new regulations would reduce sexual-misconduct probes by 32 percent.

By Sara Darehshori

This article originally appeared in TheNation.com. 

When I started to investigate police handling of sexual-assault cases in 2011 for Human Rights Watch, I expected that there would be certain vulnerable groups whose cases would be ignored. I did not anticipate that college students, who are on average relatively privileged and resourceful, would be near the top of that list. I found that the police were most likely to ignore cases that involved intoxication, which is especially common in college assaults.

Now, the Department of Education’s proposed rules to Title IX of the Education Amendments of 1972 regarding sexual harassment would weaken colleges’ obligations to respond to sexual assault, eliminating an important option for college students who experience sexual assault.

During the federal comment period for the bill, which ended in January, there were over 9,000 comments on the Federal Register site. Many seem to be from concerned survivors, their friends or family, counselors, educators, and organizations like Human Rights Watch. The comments are frequently moving, and some describe incidents like those I found in my research.

One of the people in my 2013 report was Rachel, who as a 19-year-old college student believed she had been drugged and raped at an off-campus party and tried to report her crime to the police and get a forensic exam. The police accused her of “making up stories” and refused to authorize an exam or open an investigation because, even though she had rectal soreness and was limping, she remembered little of the night apart from being groped.

Unfortunately, this reaction from the police was not an aberration. Our research about DC found that over 60 percent of the sexual-assault complaints to the city’s police that were misclassified as “non-criminal offenses,” and therefore set aside by police investigators, had involved alcohol. Nurses and advocates told us of detectives berating the victims for their behavior. Following our investigation, significant reforms in DC have resulted in improved investigations and treatment of victims by police. Victims, for example, now have the right to have an advocate by their side during all police proceedings. This, however, is the exception, not the rule.

It’s little wonder then that fewer than one in five female students report their sexual assaults to police. Victims often choose not to seek help out of fear that authorities will mistreat or disbelieve them. Many may not want to engage in the potentially wrenching justice process, or they may not want to send their assailant to prison.

Students like Rachel have another option: school disciplinary processes. Under Title IX, colleges and universities have an obligation to address sexual harassment—and sexual assault—since they interfere with a victim’s ability to participate in school activities and constitute discrimination. Under earlier rules, Rachel could have reported what happened to someone she trusted on campus, even anonymously, triggering an obligation for the school to respond appropriately. If an investigation occurred, she could have shown, through a preponderance of evidence (including circumstantial), that an assault occurred. In this way, she might have been able to continue her studies without fear of meeting her attacker.

Under the proposed rules, however, the school would most likely have no obligation to investigate Rachel’s case because the alleged rape happened at an off-campus party. The guidelines rescinded by the Department of Education called for investigating assaults that occurred off school grounds because students often feel the continuing effects of the assault in the school setting. Rachel would also be subject to cross-examination by a representative of the accused’s choice, who may be a personal friend or family member with no legal experience or training. Thus Rachel could face abusive and irrelevant questioning by someone not bound by any professional code of conduct or ethics and without counsel of her own to protect her. And she would have to have reported the assault to a designated official, in writing, for it to be considered at all.

The proposed rules are intended to ensure due-process rights for the accused and to clarify schools’ obligations to respond to sexual harassment. I agree it is important to increase transparency and establish fair procedures for determinations around sexual assault or harassment allegations in educational institutions. The new rules, however, would undermine efforts by schools to address the broad problems of sexual misconduct by making it more difficult for alleged victims to report and reducing the incentives schools have to investigate specific cases or emerging trends.

Indeed, the Department of Education acknowledges that it foresees a 32 percent reduction of investigations as a result of its proposed regulations. There were already few investigations under the previous rules—a 2014 survey of colleges found that 40 percent of college respondents had not conducted any investigations into sexual assault for five years. Changing the standards in ways that would further reduce investigations at a moment when victims are just beginning to find the courage to speak out is a leap backward, and one that will make campuses less safe for all students. The Department of Education is required to consider and address all legitimate arguments before the rules can go into effect, and it should heed the comments from the survivors and withdraw the proposed rules.