By Angela Varney
Tears.
That’s what people expect from someone who has just survived a sexual assault.
Support.
That’s what survivors expect from others after having just survived a sexual assault.
But as Christina, then 19, sat in that cold room for a hearing in front of a board of strangers who were forcing her to relive the details of the night it happened, tears never came.
To make matters worse, her assaulter was sitting in the same room, just beyond a divider. She couldn’t see him, but she could feel that he was there. She didn’t speak to him, but she could hear his voice.
And as Christina left that room without a ruling to give her closure, support never came.
One in five women and one in 16 men are sexually assaulted while in college.
More than 90 percent of sexual assault victims on college campuses do not report the assault.
Christina was part of the minority who do. But, as she left her Title IX hearing, she knew changes to the process had to be made.
The U.S. Board of Education knew this, too. But it had other changes in mind.
On Sept. 22, U.S. Education Secretary Betsy DeVos introduced new interim guidance for schools on how to investigate and adjudicate allegations of campus sexual misconduct under federal law. These sexual misconduct cases fall under Title IX—a nationwide federal statute applied to grades K-12, higher education institutions and other educational agencies and intended to protect people from sex discrimination in education programs or other activities, according to the Department of Education.
“The interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” DeVos said in a statement. While she wants sexual misconduct issues to be handled “head-on” on college campuses, DeVos said she believes the process needs to be more equitable for the accused student.
Perhaps the biggest change outlined in the guidance allows universities to modify the standard of evidence by which they rule on campus sexual assault cases. Schools are now able to move from a “preponderance of evidence” to a “clear and convincing” standard of proof.
The higher standard of evidence makes cases of sexual misconduct more difficult to prove. The new standard requires more evidence, closer to the “beyond-a-reasonable-doubt” standard employed in federal court cases. This is where the guidance stirs up controversy: Proponents of the higher evidence standard claim that this will allow for a fairer process for both parties, while opponents argue that it will discourage students from reporting sexual assaults.
National Sexual Violence Resource Center, 2015.
National Sexual Violence Resource Center, 2015.
Title IX is best known for helping to bring equality to women’s athletics, but it also governs sexual misconduct cases at educational institutions — which is what the new interim guidance focuses on.
Quinnipiac senior, Ian Zeitlin.
Quinnipiac senior Ian Zeitlin, senior class representative for the Student Government Association and president of WISH (Women in Support of Humanity), is opposed to the idea of schools implementing the higher standard.
“When it comes down to it, going to that higher level of evidence is really damaging,” Zeitlin said. “We’re coming from a society where we already have a number of untold cases that are not reported because of the pressures put on by other people in a system that doesn’t always work in favor of survivors. Putting forward a message that you need more evidence makes it harder for people to think that, if they come forward, they’ll be treated fairly or that people will be on their side.”
However, it is ultimately up to the schools to decide whether or not they choose to adopt this new guidance. Seann Kalagher, the associate dean of Student Affairs and deputy Title IX coordinator for students at Quinnipiac, said that the new guidance is simply supplemental.
“The thing is, with the new guidance, it didn’t tell us what we have to do,” Kalagher said, sitting at his desk with his hands folded neatly in his lap. “It really just said, ‘Some things we told you that you couldn’t do are now available to you.’ ”
Terri Johnson, associate vice president of operations and Title IX coordinator at Quinnipiac, sent an email to students regarding the new guidance on the Monday following DeVos’ initial statements. The email was sent to clarify what was proposed by DeVos and outlined how Quinnipiac plans to respond.
How does Quinnipiac plan to respond?
Thanks, but no thanks, Mrs. DeVos.
“It is important to note that the Quinnipiac Title IX team carefully and continuously reviews our policies to ensure timely and equitable treatment for both the reporting and responding parties; we will certainly continue to do so as the Department of Education changes evolve through the current administration,” Johnson wrote. “It is equally important to note that the action last week does not change Quinnipiac’s obligations, policies or procedures.”
Associate Dean of Student Affairs and Deputy Title IX Coordinator, Seann Kalagher.
The email also highlighted the fact that Quinnipiac has no plans to adjust the appeals process either. Quinnipiac currently allows both parties to appeal a decision and will continue to do so despite the guidance’s suggestion that only allow the accused student be allowed an appeal. Johnson concluded the email by listing resources for support.
Kalagher refers to the new guidance, however, as a “placeholder” – certain that it was issued temporarily until the Department of Education can conduct a more comprehensive regulatory process in which it will negotiate changes to overhaul Title IX policy regulations.
Zeitlin agrees. “I think this year’s “trial period” essentially is being used as more of a “cooling-off” period before they say they’re going to possibly put forth guidelines that make it harder to prove or accuse someone of sexual assault,” Zeitlin said.
With the likelihood of a Title IX overhaul in the future, officials on both sides say it is important for colleges and universities to be on the same page as their students in order to brace for the impact of a potentially permanent and mandatory revised policy. The conduct process is where faculty members and students have the greatest opportunity to work together to ensure that students aren’t discouraged from coming forward.
Courtney McKenna, director of Student Affairs and a Title IX investigator at Quinnipiac, defended the school’s adherence to the original standard of evidence while describing the process by which sexual assault cases are handled.
“I think our process is really fair and student centered,” McKenna said, smiling. “It’s always about, ‘How do we make sure we find as much information as we can as appropriately as possible while keeping the students in mind?’”
McKenna described the sexual assault case process as “equitable” — and adding that this is what makes Quinnipiac’s approach successful. Once a student comes forward, the process begins. In each case, Kalagher appoints two impartial investigators who conduct interviews and acquire as much information as they can in order to reach a conclusion.
Once sufficient information has been gathered by the investigators, which can take several weeks depending on the case, the findings are brought to a board hearing. The board reads all reports, identifies questions and implements a sanction as it sees fit during a hearing that generally takes place in a single day. Sanctions can range from writing a reflective essay to removal from residential housing on campus and even expulsion from the university.
College-Age Victims of Sexual Violence Often Do Not Report to Law Enforcement. © RAINN 2016.
As an investigator, McKenna takes her responsibility to seek an equitable outcome seriously and refers to the process as “trauma-informed” in order to avoid what she calls “revictimization.” Revictimization can occur when the victim is forced to relive an event by retelling his or her story too many times or experiencing a lack of support during the recovery process itself. For McKenna, this is something she and her fellow faculty members try to avoid throughout the process.
“We’ve set it up so that the student isn’t having to have to share with a lot of different people. They can choose if they want to share and bring a counselor or support person or friend with them to a meeting,” she said. “The students involved know that if they ever need something throughout the process, they can reach out to the investigators.”
Christina, a junior who did not wish to share her last name to protect her identity and works as a graphic designer for Quinnipiac, had her own thoughts about the investigation process. Christina, who was in a verbally abusive relationship with a fellow Quinnipiac student that “had its breaking point” in an incident on campus just over a year ago, described the process as equivalent to repeatedly ripping open a wound.
“It’s hard because you’re literally forced to relive the night over and over again. They keep going through it,” Christina said, her glassy eyes staring straight ahead. “They ask you a ton of questions because they want a very thorough investigation. My case took three to four months. There’s weeks where they don’t need anything from you, and those are good weeks, but they rip open the wound again next week when they need more information from you. Each time it gets appealed, it’s like a fight to come up with new information so you can prove yourself.”
A timeline outlining the steps of a typical Title IX investigation at Quinnipiac, as described in detail by McKenna, can be seen below.
After the incident occurred, she had to rebuild her life. She still avoids certain places on campus because she doesn’t want to run into her attacker. Even after being charged on five out of the six accusations, he still attends Quinnipiac. Christina chose not to exercise her right to appeal his sanctions because, she said, she was tired and “didn’t want to deal with it anymore”.
Christina said Quinnipiac, in lieu of the new guidance, could make a change to the Title IX process to unite students and faculty since the biggest divide between them isn’t the process itself, but what happens after.
“I completely agree to a fair process,” Christina insisted. “But after the whole thing is done and over with, I feel like there’s no transition from the process to moving on. I feel like they want to dig up all of this information but when it’s over with, they’re like, ‘Oh, it’s over. You’re done here … you’re fine’.”
Providing students with an outside person trained in Title IX who is available to provide support as the victim moves on after the process concludes would be a major improvement, Christina said. It would ultimately help encourage students to continue to come forward because they would know they’d have the help of someone who understands what happens after the process is over.
Students like Tatyana Youssef, vice president for student experience for the Student Government Association at Quinnipiac, agree that changes need to be made — even if they aren’t what DeVos proposed.
“Events and panel discussions regarding the issue should be mandatory for all students on campuses,” Youssef said. “Revictimization is the worst thing next to a sexual assault case, so professors should implement these social issues into the curriculum for awareness.”
Senior political science major and Quinnipiac student, Peter Carusone, defends DeVos’ new “fair” guidance proposal based on what he says are constitutional rights that affirm individuals as innocent until proven guilty from the very beginning of the process.
Quinnipiac senior, Peter Carusone.
“I think people over analyze decisions sometimes. They’ll take too much from it. They’ll say, ‘Oh Betsy DeVos is protecting bad people,’ but that wasn’t her intention, and that’s not why she did it,” he said. “There were too many good people being harmed by [the preponderance standard], and I think all she did was say, ‘Let’s go back to our criminal justice system. Let’s go back to innocent until proven guilty.’”
Carusone argues that returning to the “clear and convincing” evidence standard would allow colleges and universities to function more like a courtroom while upholding the Constitution – something he says is a priority.
“You should want constitutional rights. You should want due process. You should want equal protection. Those things are good,” he said. “We should be wanting more of that, and I think it’s innocent until proven guilty for a reason.”
When asked how he would respond to opponents of the new guidance who argue that implementing a higher evidence standard would discourage victims from coming forward, Carusone said that particular issue already exists with sexual assault cases – higher standard or not.
“The problem throughout history is that there is a stigma: People won’t talk about it, and they won’t even go to law enforcement,” he said. “But, now, we’re seeing people talk about it, at least. It’s on us to fix it and talk about the commonality of [sexual assault] in order to prevent it in the first place.”
Tamar Birckhead, a 52-year-old attorney and former law professor at University of North Carolina at Chapel Hill School of Law, Duke School of Law and Yale Law School currently living in Guilford, Connecticut, has defended university students accused of sexual assault before and agrees with Carusone that universities should adopt DeVos’ higher standard of evidence.
“It is beneficial because of the lack of due process afforded to accused students, although I recognize that the higher the standard of proof, the more traumatic the experience could be for the complainant,” Birckhead said. “But, given the grave potential consequences and sanctions for the accused, it is a tradeoff that I would support.”
In her experience, she said, accused students in these cases are often treated unfairly in the process. Birckhead says that, to fix this, investigations and adjudication of sexual assault cases should be handled by law enforcement – not universities.
“Alleged victims should be referred to the local police, and if a conviction or other sanction results, it should be reported to and evaluated by the university, which then could determine its own sanction, if any, and should consider mediation and restorative justice models,” Birckhead explained. “If these cases automatically were reported to and investigated by local law enforcement in this way, it would serve as a greater deterrent to assailants than the threat of mere academic discipline.”
Sexual Violence Is More Prevalent at College, Compared to Other Crimes. © RAINN 2016.
While the process didn’t necessarily yield the outcome Christina hoped for, she decided to use her experience to help spread awareness and advocate for other survivors by writing articles for The Chronicle—a Quinnipiac student-run newspaper. Her most recent article was an opinion piece on the new guidance titled, “DeVos missed the point with Title IX,” commending Quinnipiac for its decision not to follow the new guidelines while highlighting the bigger issue: revictimization.
“I don’t agree with DeVos’ changes because I don’t think the issue with Title IX lies in the amount of evidence we are collecting to prove the accused,” Christina wrote. “The issue lies in sanctioning the guilty, providing support in helping victims readjust to school and in making an effort to prevent Title IX violations all together.”
This is where faculty members and students, like Christina and Youssef, agree. Encouraging students to come forward by implementing new educational programs and promoting other changes in lieu of the new guidance, regardless of what they believe the outcome might be, is more important than any changes that DeVos proposed, they say.
McKenna plans to roll out a program in February called Haven, which is similar in style to the alcohol education course that incoming Quinnipiac freshman take. She says that her department is excited to get the program up and running to educate the student body.
“We’re constantly always looking to see what would be impactful,” McKenna said. “Something could work well for a couple of years, but then it gets stale. So how do we change that to make it relevant?”
Campus officials hope that programs like these and events that spread awareness will lead to a decline in sexual assault cases on campus, and an end to revictimization over all—without needing a higher evidence standard to prove a case.
Although the process was taxing on Christina, speaking up was most important.
“Even though things didn’t end in my favor, I don’t regret reporting it to the school at all. I think just going through the process is a symbol of strength that you’re fighting back and trying to get justice for what happened to you, and you deserve that,” Christina said. “Title IX is in place so that you have the opportunity to feel safe at school, and take advantage of that because you shouldn’t have to walk around campus feeling unsafe.”
