If someone ever asked me to describe my experience with sexual assault at the University of Michigan, I would tell them being a female student on a college campus has become a position of anxiety, fear and emotional distress. I would tell them that I have seen countless friends’ lives altered because of sexual assault. I would tell them I have had strangers grab my hips and pull me in close at tailgates in broad daylight. I would tell them that I have seen intoxicated girls slipped drugs at parties, and so — even though no one should have to — I hold myself accountable to not get drunk. I would tell them I have witnessed fraternity brothers raise their solo cups in confirmation that they found a girl drunk enough to have sex with them. I would tell them that unless they are currently a female student on a college campus, they have no idea just how ingrained sexual misconduct has become within the college culture.
In the midst of a global pandemic, Secretary of Education Betsy DeVos has reversed any success that has been made combating the long-lasting sexual assault epidemic. Last month, DeVos fundamentally changed the landscape of Title IX and tipped the scales in favor of those accused. The guidance documents issued by the Obama administration to consider all investigations of misconduct are long gone. The finalized Title IX regulations narrow the definition of sexual harassment, as well as require live hearings and protect those accused of campus sexual assault by allowing them to question evidence and cross-examine the plaintiff. Live hearings with cross-examination were already required at the University, however, now the perpetrator can have their lawyer cross-examine the victim with meticulous questioning that has been honed through years of legal training, making the campus disciplinary process more like a daunting courtroom. Chanel Miller, a survivor at Stanford University whose assault had multiple witnesses, describes her interrogation by lawyers as being “pummeled with narrowed, pointed questions that dissected (her) personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had (her) half naked before even bothering to ask (her) name.” They will do everything they can to manipulate the victim until they prove the case as a misunderstanding, even when the sexual assault is blatantly evident.
Economic inequalities will be amplified since some students will not be able to afford lawyers. This will unlevel the playing field during cross-examination because now there could be an expert examining one student and someone who has no experience with the law examining the other.
Additionally, under the new regulations, universities can adopt a “clear and convincing evidence standard,” making sexual assault cases even harder to prove because now evidence must be deemed substantially more probable to be true than not true. This is more rigorous than the current “preponderance of the evidence standard,” which requires enough evidence for the judge or jury to rule that the plaintiff’s claims have a greater than 50 percent chance of being true. The only higher burden of proof would be “beyond reasonable doubt.” It is alarming that such a strict burden of proof can be adopted for an offense that commonly happens in private and is already hard to obtain concrete physical evidence of.
Under the new definition of sexual assault and harassment, federally funded schools are required to only investigate the most extreme forms of harassment. Sexual harassment must be determined by a “reasonable person” to be “so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” This definition presented by DeVos is widely subjective and makes it harder for sexual harassment cases to even go to a hearing. Victims must have repeated and escalated levels of sexual harassment before they can file a claim. Additionally, the definition is much narrower than the current federal definition of sexual harassment: “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
A key issue that has not been addressed is if someone was intoxicated during the incident, their case may not be seriously considered. This is unnerving considering alcohol is involved in approximately 50 percent of college sexual assaults and 90 percent of sexual assaults perpetrated by an acquaintance of the victim. Alcohol has long been a factor that complicates sexual assault cases because often the victim does not remember parts of the assault or the assault as a whole. Unconsciousness has almost become a loophole for the accused to get out of college rape investigations with zero violations. For example, in a recent sexual assault case regarding students on the University track team, a Washtenaw County assistant prosecutor said the case could not be prosecuted, even though the perpetrator admitted to the assault over text, because the female victim was asleep and could not remember the event. It is incontrovertible that this victim did not have the ability to consent. Yes means yes, and anything except yes, including no response, means no. How is this any different than an intoxicated victim?
If a victim’s ability to consent is prevented due to intoxication or because they are otherwise unconscious — which would constitute sexual assault under the federal definition: “nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent,” — why are the accused winning these cases or not even having cases filed against them at all? The victim’s memory loss is used against them, instead of being used as proof that they did not have the capacity to consent. The University currently has a provision that accounts for assault by way of incapacitation; nevertheless, it seems rarely used based upon the few perpetrators of sexual assault that actually receive violations and the general trend of many reports not receiving violations at the University.
One counterargument is false reporting. However, false rape reports do not surpass those of other crimes. Many people easily fall into the trap of assuming the victim is a liar. It is rarely assumed that someone is lying about their laptop getting stolen, or their house getting broken into, so why do people default to the assumption that a victim of sexual misconduct is lying?
Another drastic change by DeVos soon to be set in stone is that schools can choose whether to handle cases that occur in off-campus areas. She is essentially giving perpetrators clear guidelines for how to get away with assault, designating off-campus areas as their safe zones. Almost every sexual assault survivor that I have met at the University was assaulted in off-campus housing, whether that be an apartment building on South University Avenue or a house on Geddes Avenue. With 69 percent of students at the University living off-campus, it is pertinent that every case be considered, not just those occurring in the dorms.
DeVos is handing universities an opportunity to return to their previous habits of sweeping sexual assault allegations under the rug. She is ultimately looking out for the financial interests of schools, although this may be disguised as her desire for due process. Many universities already shy away from pursuing sexual assault cases due to the risk of lawsuits worth millions of dollars from the accused. In the University sexual assault case Doe v. Baum, John Doe, the perpetrator, filed a lawsuit claiming that the University violated his due process rights and “amounted to gender discrimination against male students accused of sexual assault.” The case was dismissed and a settlement was awarded to Doe.
Currently, more than 90 percent of sexual assault victims on college campuses do not report their cases formally. This staggering statistic of nonreporting is conceivable considering less than half of women at the University believe that campus officials would conduct a fair investigation into a report of sexual assault or misconduct if it were to occur. DeVos’s new regulations will discourage victims from coming forward even more, which consequently allows leeway for rampant sexual assault on college campuses. According to the Association of American Universities 2019 Campus Climate Survey on Sexual Assault and Misconduct at the University of Michigan, 17.1 percent of all students and 34.3 percent of women said they experienced nonconsensual sexual touching or penetration since enrolling at the University. With an undergraduate 2019 fall enrollment of 31,266 students, about 5,347 students fit into this statistic; that is enough students to fill Chemistry 1800, the largest lecture hall on campus, over eleven times.
Keep in mind this statistic only accounts for students who responded to the anonymous survey. Even though a theoretical 5,347 students experienced non-consensual sexual touching or penetration based on the above statistic, Out of those, there were 272 reports of sexual and gender-based misconduct, including 126 reports of sexual assault; 36 reports of stalking allegations; 29 reports of intimate partner violence and 84 reports of sexual harassment. Out of the 272 reports made to OIE, only sixteen Investigative Resolutions were opened, nine of which resulted in some sort of finding. Out of the nine cases where findings had been reached, only five cases resulted where students were found to have violated University policy. There is clearly a flaw in the system considering less than nine perpetrators have received violations for sexual assault on a campus with over 30,000 students. Based on these statistics, inequalities within sexual assault cases on college campuses were evident far before DeVos extended any new regulations. At the University, victims do not report for a multitude of reasons; however, it is clear why some victims of sexual assault do not believe their voice will be heard.
Sexual assault is far more complicated than a statistic because sexual inequality is deeply rooted in society. Even though there have been many legal reforms that promote gender equality, gender norms and male dominance further continue the pattern of discrimination against women. 23.1 percent of female undergraduate students in the U.S. experience rape or sexual assault through physical force, violence or incapacitation compared to 5.4 percent of males. Sexual assault is not a “women’s issue” when, in most cases, men are the ones committing the crime.
The new regulations are set to go into effect August 2020. If the University cares about their students and the way we live on campus, it is pertinent that the issues with DeVos’s anti-survivor ideology are recognized before students return to campus in the fall, and before sexual misconduct becomes ever more prevalent within the college culture. Currently, nothing is combatting the corrupt cycle of college sexual assault. If a predator on campus rapes a student and receives no violation, what is stopping them from moving along to the next student? The reality is the majority of people who commit sexual assault are serial repeat offenders. A 2019 multi-campus study found that 87 percent of alcohol-involved sexual assaults were committed by serial offenders.
The question shouldn’t be how to defend the accused, but how to support the victim and create a process that not only protects the victim’s rights, but also makes justice attainable. Sexual assault cannot be trivialized to just another Saturday night on campus. The University is known for being progressive; with the federal government moving in the opposite direction, the University must fulfill this reputation and decrease the prevalence of sexual assault on college campuses. The impunity that underpins DeVos’s policy changes allows leeway for sexual predators; there will be more pulling in hips at tailgates, more slipping drugs into drinks at parties and uncontrolled sexual assault on campus if the University, as well as its students, remain complicit. If we want to see change in the statistics of sexual assault at the University, strong policies for off-campus and non-University affiliated settings must be created, the “preponderance of evidence” standard must be maintained and, ultimately, students need to change the college culture from within.
Emily Ulrich can be reached at emulrich@umich.edu.