Finding Areas for Hope in the New Title IX Regulations
By Ruth Perrin, NVRDC Senior Counsel, Campus Violence Project
On May 6, 2020, I joined countless advocates, survivors, administrators, and activists in feeling deep disappointment that the Department of Education (DOE) chose to release new, confusing, and potentially harmful Title IX rules in the middle of a global pandemic. Student-survivors who are in the middle of their schools’ current processes feel the added uncertainty about what will happen if their case isn’t concluded by the new rules’ August 14, 2020 implementation date. Our community of attorneys, advocates, and activists have been scouring the new rules to figure out what all these changes mean for the survivors we support.
Since joining NVRDC four years ago, I have advised student-survivors in on-campus sexual violence cases, and represented dozens of survivors in criminal cases and in civil protection order (commonly called “restraining order”) cases. I’ve seen many police investigations, on-campus investigations, civil protection order trials, on-campus hearings, and criminal trials. As I read the new regulations and the 2,000+ pages of explanations that the DOE released with them, all the strong, courageous survivors I’ve worked with were on my mind, as was the main lesson I’ve learned in the last four years: no process is ever easy on survivors, but it is always possible to make the process better.
The new rule requires schools to have an investigation followed by a live hearing. This will require that survivors tell their story at least twice, first to the investigator who gathers evidence, and then at a hearing to the decision-maker (which may be an individual or a panel) who decides if there is enough evidence to find the respondent responsible. In the last few years in DC we have seen universities moving away from live hearings, and instituting single-investigator models, in which an investigator gathers evidence and questions the complainant, the respondent, and any witnesses, and then makes a decision regarding the respondent’s responsibility. Many times these changes came from input from survivors who had expressed how hard live hearings had been, how traumatizing it was to have to tell their story in a room full of people and to be questioned in front of their assailant. And with good reason: I’ve been at hearings that took days on end. I’ve witnessed survivors be directly and personally cross-examined by their assailant. I’ve watched hearing panels question survivors, asking them why they hadn’t verbally objected to their assault, why they didn’t kick someone out of their dorm, and why they didn’t physically push away their assailant.
But these problems aren’t limited to hearings. I’ve also seen investigations that were not transparent, that made survivors feel like they didn’t even get a real chance to voice their story before one person made the decision that there was not enough evidence to punish their assailant. I’ve seen investigations that came to unreasonable conclusions and used harmful victim-blaming language in their analyses. Neither the hearing panel model nor the investigator model is better for survivors; what matters is how the process is implemented. This is why I have hope for the hearing process that is required under the new Title IX rule. I’ve seen schools get investigations and hearings wrong, but I’ve also seen them get things right. Administrators have prevented respondents from asking inappropriate questions about how a survivor was dressed or about their prior sexual history. Investigators have conducted transparent and thorough investigations. Survivors have gotten tremendous support during these processes from their schools’ advocates. Student-survivors have expressed that they felt proud of themselves for telling their story in a hearing. The new Title IX rule requires that a school use a live hearing, but leaves it up to the school to create specific procedures for those hearings.
Schools have the freedom to train the decision-makers on trauma-informed interviewing, dynamics of intimate partner violence, rape myths and sexual assault statistics, common responses to sexual assault, and the effect of trauma on memory.
Schools can put protections in place to reduce the number of times survivors are required to tell their story. Schools can create rules for their processes to ensure transparency in their decision making.
Schools have the ability to implement a comprehensive definition of consent that makes it clear that consent must be affirmative, enthusiastic, and ongoing.
A particular cause for concern in the new rules is the requirement that the parties be cross-examined by the other party’s advisor during a hearing. This means that a survivor will be questioned by their assailant’s advisor, who may be an attorney, professor, a coach, or even a friend or family member of the assailant. There is no sugar-coating this provision: cross-examination is scary. It can be, and often is, intrusive, embarrassing, and retraumatizing for a survivor to go through. It makes the process incredibly adversarial and opens up a survivor to potentially unlimited questioning. But the regulations were clear that even though a school must allow cross-examination, they are able to put limits on it to avoid inappropriate questioning. Under the new rule, before a party answers a question, the decision-maker must decide if it is relevant. This gives schools the opportunity to educate decision-makers on what is relevant and appropriate in a case involving sexual misconduct. Schools can create specific guidelines on what types of questions are and are not allowed to prevent inappropriate questions from being asked. Cross-examination will never be easy, but schools can put protections in place to mitigate the negative effects it can have on survivors.
One of the most confusing and easily misunderstood parts of the new regulations says that if the conduct occurs outside of a program or activity, outside of the United States, or does not meet the (more limited) definition of sexual harassment, the complaint must be dismissed under Title IX. This is a frustrating and unfortunate inclusion, because it makes it sound like schools are prohibited from investigating a sexual assault that occurred off-campus. But this isn’t what the rule actually requires. Schools are free to (and should) adopt sexual harassment policies with more encompassing definitions of sexual harassment, and prohibit sexual harassment by a student regardless of where it occurs. While that complaint cannot be investigated under Title IX, it can be investigated under the school’s sexual harassment policy. This sounds confusing, but is actually something that we have seen done even before these rules. For example, many schools have chosen over the last several years to prohibit non-consensual sharing of intimate images, and put it as a provision in their sexual harassment policy. This was never conduct prohibited by Title IX, but was handled the exact same way that other types of sexual misconduct were handled. The only thing that needs to change is that schools simply have to be clear that, when they receive a complaint of sexual harassment that occurred off-campus, it is being investigated as a violation of their sexual harassment policy, and not under Title IX. Ideally the DOE would have required schools to investigate any sexual harassment perpetrated by a student, regardless of where it occurs, instead of creating a “mandatory dismissal” provision that has caused much confusion and alarm among survivors and advocates. But, because the effects of a sexual assault are not limited to where it occurred, student-survivors will see on-campus effects of an off-campus assault; therefore, there is absolutely no reason for a university to not regulate sexual assault occurring off-campus. I have hope that schools will do the right thing and continue to prohibit students from engaging in sexual harassment regardless of where it occurs.
While the Title IX rule is not what we hoped it would be, I want to emphasize the amount of room that we have to advocate for schools to do better. As a community of advocates, survivors, students, and activists, we all have the power to demand that schools do so much more for their students than the DOE requires. NVRDC urges schools to set higher standards for themselves than the DOE set for them, and we encourage students everywhere to demand that their schools make these processes safe for survivors. NVRDC will be continuing to ensure that student-survivors have someone to support them throughout their on-campus process, and do whatever we can to make that process as safe as possible for survivors.
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Did you know NVRDC has assisted over 200 student-survivors since we started in 2012? College survivors also make up 20% of the survivors NVRDC’s advocates support during medical forensic exam at MedStar Washington Hospital Center. Given the high numbers of college students that we work with, we feel strongly that we can help schools and students navigate the impacts of the new rule!
If you are a survivor of sexual assault and want to access a medical forensic exam, call the DC Victim Hotline to talk to one of our advocates. 1-844-4HELPDC (1-844-443-5732).