Controversial new regulations for how universities respond to sexual assault reverse a decade of survivor advocacy work, said Sara Rust-Martin, legal and policy director for the Kansas Coalition against Sexual and Domestic Violence.
Changes to the Title IX guidelines, which took effect on Friday, have been heavily criticized for over-expanding the rights of the accused. They were announced in May by U.S. Department of Education secretary Betsy DeVos and replace an Obama administration rule she revoked in 2017.
Survivors’ rights advocates across Kansas are speaking out about the new rules, which include reestablishing a presumption of innocence for those accused of misconduct. The advocates say changes will place an undue emotional burden on survivors looking to continue their education while they seek justice.
“It’s not only that they don’t know what happened, but that they will enter the investigation under the idea that the accused is innocent,” Rust-Martin said. “We have spent so long trying to fight that notion that survivors lie. This only reinforces it.”
The changes took effect after a federal judge chose not to impose a temporary injunction postponing the rule implementation, despite arguments that a lawsuit filed by 17 states and the District of Columbia should be heard in court first.
One of the most significant changes is the updated definition of sexual harassment to “unwelcome conduct” that is “so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
The bar for evidence when determining if a Title IX violation occurred has also been raised. Previously, schools used a “preponderance of evidence” standard, meaning more likely than not. The new language, “clear and convincing,” means evidence presented must be significantly more probable than not.
“These changes are going to drastically affect the scope of cases we see on college campuses across the country and in Kansas,” said Lauren Bonds, legal director for the American Civil Liberties Union of Kansas. “We will still have the same number of assaults, but the number of people having their cases investigated will decrease.”
Bonds said the rule also reverses efforts to hold universities accountable.
In 2016, Sarah Weckhorst filed a lawsuit against Kansas State University after the school refused to investigate her case. The university said it did not have to investigate Weckhorst’s claims because her assault occurred off campus. Several rulings disagreed before the lawsuit was dropped in November 2019.
As part of the rule, universities will no longer be required to investigate off-campus incidents.
“It’s disappointing to see all this effort put into making sure universities have to investigate these cases and then have that erased,” Bonds said. “It’s already difficult enough to have your claims taken seriously by some schools.”
Even if an investigation is launched, administrative hearings will now take the form of near-legal proceedings, Bonds said. Both parties are subject to a live cross-examination, potentially forcing the victim to come face-to-face with an attacker.
Cross examinations are voluntary, but for those who refuse, any other statements made will be blocked from evidence.
“There is a reason this wasn’t supported previously. It forces someone to potentially relive an incredibly traumatic moment just feet from their assailant,” said Sarah Elliot, campus advocate for the Sexual Trauma and Abuse Care Center in Lawrence.
Effects will even be felt by those looking to provide immediate help for survivors of sexual harassment or assault. With a more trauma-inducing road to justice, Elliot said, these sorts of services are critical in keeping many afloat.
Before the change, interim measures were tailored to meet each individual’s needs and could be implemented at any time. Now, these measures can only be taken after the report is filed.
“Providing these services is critical to allowing survivors to continue their education and still seek action. Those two shouldn’t be exclusive,” Elliott said. “This isn’t a trauma-based approach and it doesn’t support survivors.”