One of the favorite themes of the mainstream media this year is that the Trump administration is “dividing America.” (As if the President were eligible for patent on that idea.) Time Magazine picks up that particular baton this weekend with an article on the new Department of Education guidelines regarding sexual assault. They opted to go with the title, “The Country Is Torn Over Betsy DeVos’ New Campus Sexual Assault Guidelines.”
The focus of the article targets the new Education Department guidelines for investigating cases of sexual assault. The interim guidance now gives schools the option of using the stricter, “clear and convincing evidence” standard rather than only the “preponderance of evidence” standard insisted on under the Obama administration. The debate unfolds from that starting point.
Reading through the piece it’s not quite as bad as one might imagine. Rather than diving into yet another one-sides attack on Betsy DeVos, Time manages to present voices from both sides of the current debate. For example, they start with one of the liberal advocacy groups who obviously want to pretend that DeVos is the Devil in a Very Expensive Dress (and private jet) who is trying to promote the wanton rape of co-eds.
“Today, Betsy DeVos and the Trump Administration chose to tip the scales in favor of rapists and perpetrators,” the group End Rape on Campus said in a statement. “Rolling back this guidance is an affront to the students, survivors, and allies who have fought to bring the sexual assault epidemic out of the shadows.”
Time earns some credit for balancing this against a response from Cynthia Garrett, of Families Advocating for Campus Equality. This group advocates for full due process on behalf of students who have been accused of sexual assault.
“Parties in the grey ‘he said/she said’ cases might benefit significantly from an understanding of each other’s perspectives concerning the event in question,” Garett told TIME in an email, “as well as their own shortcomings in communicating their own or tuning in to their partner’s wants and needs.”
Time Magazine further includes comments from a similar group with the same stated goals, Stop Abusive and Violent Environments (SAVE). Their spokesperson calls the new guidelines, “a good start.”
A “good start” may be fair enough, given that these are only interim guidelines to be implemented while the department conducts additional studies on the subject. But even as an interim measure they fail on two different levels. First of all, the standard of evidence window may have been widened, but it’s still left to the discretion of the schools. If the department had mandated only the higher bar of clear and convincing evidence that would at least be something. But the schools are apparently still free to use the existing, lower standard if they wish, so the problem really hasn’t been solved at all.
Beyond that we need to remember that the guidelines still begin the conversation from the wrong launching point. The phrase “campus sexual assault” is meaningless because it’s one word too long. Forget for the moment that college women aged 18-24 who are on campus are significantly less likely to be raped or sexually assaulted than non-students who are not on a campus. There is zero difference between the crime of sexual assault taking place on campus and any other sexual assault taking place on non-academic property. It’s always a crime (when it actually takes place) and it always needs to be prosecuted. We’re running into this problem because, with all due respect to the Secretary, neither Betsy DeVos nor her predecessor under Obama should ever have been addressing this question to begin with. It should have been coming from Jeff Sessions and the Department of Justice.
Specifying which standard to use – preponderance of evidence vs clear and convincing evidence – invites the idea that some kangaroo court set up by a college or university, even if well intentioned, should be handling criminal investigations. There either was a crime committed or there wasn’t. If there was, the police and the courts need to be handling it and nobody else. If there was no crime, then some ad hoc college panel should not be bringing any charges or even accusing anyone of a crime. It’s really as simple as that.
As long as we keep pretending that some group of college professors and administrators is capable of handling the administration of justice under the rule of law or protecting the public, this issue will never be resolved. This is equally true no matter whether you’re considering the rights of the accused under due process or the safety of the community, since colleges can’t lock up rapists and take them off the streets if they find them “guilty.” The proper final resolution for the Department of Justice in this situation is not to issue some new guidelines for how colleges should “handle” cases of rape and sexual assault. It’s to forbid them from trying and making the reporting of crimes to the proper authorities mandatory as part of their responsibility to both keep students safe and ensure that all of their rights are defended.