This week’s guest blog post comes from Lauren Ruvo, a JD Candidate at Georgetown University Law Center and Editor-in-Chief of The Georgetown Journal of Gender and the Law. She has dedicated herself to pro bono work focused on Title IX and other gender disparity issues.
It has taken until 2018 for victims of sexual violence to feel like they can speak up and have their voices believed and heard. The Trump Administration seeks to overturn Obama era guidance on Title IX, which increases the likelihood that victims of sexual violence will be re-traumatized by having to go through a more intense hearing process. The new guidance increases the difficulty for victims of sexual violence to get the remedies they are entitled to. Fortunately, for women and victims everywhere, it is not too late. The notice and comment period will open in the next month or so, now is the time to make our voices heard because #MeToo.
Up until the #MeToo movement, people had an abhorrent reaction people had whenever a woman  came forward to share her story about her experience with sexual violence. Many would say that the woman must have wanted it, also known as victim blaming. Some of the most common examples of victim blaming are: “She was too drunk” or “She must have dressed in a way that made her look like she wanted it.” People tend to engage in this behavior because it is difficult for any person to recognize that even if they do everything right (remain sober, dress conservatively, etc.) that they too can fall victim to sexual violence. While victim blaming is a way for people to grapple with these difficult situations, it is inherently problematic for the thousands upon thousands of women who fall prey to sexual violence each year because it places the blame on the victim instead of the accused.
Sexual violence cases have many complex layers. The complexities stem from the high legal bar that the victim has to clear in order to even get her case heard. In fact, the majority of sexual violence cases are settled outside of a court room and those that are not settled are oftentimes dismissed. Part of the reason for this is that in a 1986 decision, the Supreme Court said that the behavior needs to be “severe or pervasive” in order to qualify as harassment, whether it is on the basis of sex or race. In 2007, the Nation’s highest Court raised the bar further by requiring plaintiffs to show that somebody is acting with intention, which is a much higher standard to have to prove. Despite the majority of cases being dismissed, there is still a push for more protections to be afforded to the accused, especially at institutions of higher education. While this is not outright victim blaming, by saying that the accused student should have more protection than the victim, feels like we are discrediting the experience of the victim.
Another non-blatant form of victim blaming can be seen in the Trump Administration’s proposed Title IX reform. Title IX of the Education Amendments of 1972 protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX is meant to provide equal protections to people and to ensure that people are not discriminated against on the basis of sex. According to the Department of Education website, institutions receiving federal funds must operate in a nondiscriminatory manner, which includes sex-based harassment. Also, a recipient may not retaliate against any person. While institutions are free to craft their own Title IX policies, the law is meant to provide equal protection to anyone who files a complaint.
While Title IX seems to be straightforward, in 2011, the Obama Administration reinterpreted Title IX as giving the federal government authority to dictate the specific procedures that colleges must use to adjudicate student-on-student sexual assault allegation. This colloquially known “Dear Colleague” letter, told all of the more than 7,000 high education institutions that receive federal money to use the lowest possible evidentiary standard, a preponderance of evidence, in sexual assault cases. The letter required universities to allow accusers to appeal not-guilty findings, which is a form of double jeopardy that is barred by the Fifth Amendment. The letter gave institutions a mere sixty days to implement these new policies, which led to confusion and likely explains why the Trump Administration feels the need to clarify the law.
In September 2017, Education Secretary Betsy DeVos announced that her department was concerned that previous guidance denied proper due process to accused students. As part of the interim guidance, the department released a Q&A outlining recommendations on how schools should respond, including guidance on what schools are obligated to do in response to allegations as well as increases the institution’s flexibility in establishing their own procedures. The administration is formally withdrawing the 2011 “Dear Colleague” letter and raises the standard of proof. Each institution will have their own Title IX policy which increases the likelihood that victims will have another obstacle to clear before they receive any kind of remedy for the wrong committed against them.
On its face, Title IX is a law of equality. When applied in the way in which it is intended, the law is meant to ensure that both the victim and accused are given equal resources. Meaning if an accused student is given an attorney and a counselor then the victim must also be offered the same, equal resources. As you might imagine, it is rare for the victim to have access to the same resources as the accused student – a good example of this is the Stanford Rape Case. The Obama era “Dear Colleague” letter is by no means perfect, but it is a step in the right direction for giving victims of these heinous crimes the protections that they deserve. Using a higher evidentiary standard re-traumatizes the victim, as it often means the victim will have to retell her story several times during the process. Accepting that the victim will relive the trauma she experiences and giving the accused student more protection is a form of victim blaming, plain and simple.
To me, Title IX has always been about affording protection on college campuses to our nation’s most vulnerable populations. Whether it is offering protections against discrimination on the basis of race, sex, or gender or protecting against sexual violence, the law is important and must be applied in the way in which it was intended, which is equally. I am not saying that we should believe the victim without any hesitation. That is not what the law says, and I do not think that anyone is asking for that. Rather, we should ensure that the victim’s voice is heard, respected, and protected.
It is amazing to me that in 2018, anybody, especially a woman, is okay with re-victimizing a person who has already suffered through an act that is as unconscionable as sexual violence. At a time when more and more women are coming forward and talking about the heinous acts of sexual violence they have had to endure, we have a duty to speak up. We, as women and as a society, have a duty to push back on these proposed rules so that victims are not given another hurdle they have to clear in order to get the protection they should be entitled to.
The proposed Title IX reform will be a major step back for women. As a society we will be engaging in a gross amount of victim blaming by accepting reform that puts the story of the accused student above the victim’s account. By keeping Title IX and accepting the Obama era guidance we will allow victims and the accused to be on equal footing, which is what Title IX was meant to create.
Since the majority of sexual violence cases are thrown out before they see the inside of a court room, it is imperative that Title IX do its job and serve as a safeguard for victims on college campuses. College campuses are supposed to be safe places, but by allowing this reform to happen, we open them up to all kinds of unsafe behavior. The Trump Administration will be opening up the period of notice and comment in the coming months. Be sure to voice your opinion on these changes, I know I will be because time is up and #MeToo.
While men also are victims of sexual violence, this piece focuses primarily on women since this is the type of violence I am most familiar with.