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Accusation does not always mean guilt: Why DeVos is right about changing campus sexual misconduct procedures

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Tribune News Service Illustration

Brandon Amato, Staff Writer

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In a speech addressing policy regarding sexual assault on college campuses on Sept. 14, Secretary of Education Betsy DeVos announced that the current administration plans to drastically change its approach to pursuing campus sexual misconduct complaints.

According to an article by NPR, DeVos said the Title IX procedures and guidelines passed down by the Obama administration in 2011 resulted in “a system run amok,” “kangaroo courts” and “codes that trample free speech rights.”

DeVos said we need to move away from a system that too often denies due process rights to those accused of sexual misconduct. “One rape is one too many,” she began during her speech at George Mason University, followed by, “One person denied due process is one too many.”

There’s no way around the fact that DeVos is saying that the men and women who have been accused of sexual misconduct need more protection. Frankly, she’s right: the accused do indeed need more protection.

I can hear it now: “How dare you suggest rapists need more protection?” and “How could you put women at higher risk?” I hear you, trust me. However, let me assure you of a couple things.

First of all, to say that I am suggesting we protect rapists, or any perpetrators of sexual misconduct for that matter, is not only inaccurate as it applies to my personal opinion, but it unfortunately is at the core of the national “sexual misconduct and Title IX” conversation as a whole.

I would never suggest that we provide additional protections to those convicted of such heinous crimes, and neither would a public official (in most cases). But bear this in mind: there is a very important distinction to be made between “those convicted of sexual assault,” “those charged with sexual assault” and “those facing allegations of sexual assault,” as hard as that may be for people to stomach.

In order for our democratically-based criminal justice system to survive, we simply cannot be selective about the principle of presumed innocence.

Additionally, I recognize the fact that I am a male. I recognize the fact that women are nearly 20 percent more likely to be victims of rape or sexual assault through physical force, violence, or incapacitation as undergraduates, according to a Rape, Abuse and Incest National Network (RAINN) study done in recent years. I recognize that there are countless factors at play when it comes to victimhood and reporting of sexual misconduct (or lack thereof). I mention all of this to help you understand the most important thing that I recognize: there are things I may never be able to fully comprehend, including being a victim of sexual assault.

None of these things, however, precludes me from having an opinion about Title IX procedures. And none of these things makes me wrong when I defend DeVos by saying that we need to protect the due process rights of the accused and reverse a disturbingly-prevalent mindset equating accusation with guilt.

A lot of you may still be asking why a shift in policy like the one suggested by DeVos is necessary. To help illustrate the point, let’s look at an example cited in a Wisconsin Public Radio report by reporter Tovia Smith back in October of 2015.

A student at the University of California, San Diego was suspended after a fellow student accused him of sexual assault. He says he was shocked by the accusation and denies any nonconsensual contact. He and his accuser had been hanging out, texting, partying and studying together on friendly terms for months after the alleged assault, he says. He also claims to still have the text messages to prove it, including her messages asking to come over to his place and “pre-game” together before a party.

One would think – and I would hope – that this type of evidence could be used during campus tribunals to help the accused defend themselves against alleged misconduct. According to the UC-San Diego student, he never had a chance to make his case because the school wouldn’t let him introduce his text messages as evidence, challenge the investigator or effectively cross-examine his accuser.

Although this particular student took his case to state court and the judge ordered the university to drop its finding against him and all sanctions, including the year-long suspension, the fact that he was suspended in the first place is precisely the problem. These pseudo-criminal proceedings conducted by college administrators are too-often unfair, mostly because they are rarely bound to the same due process standards as a criminal court proceeding would be, e.g., the accused having a right to an attorney or, as mentioned before, the right to effectively cross-examine the accuser.

Simply put, in the past, colleges and universities used to dismiss far too many sexual misconduct cases, fearing a reputation as a “rape school.” In administrators’ minds, the fewer reports they actually followed up on, the fewer cases they would have to report to the Department of Education, which meant they could appear squeaky clean when it came time to report these numbers publicly.

As a matter of fact, 89 percent of U.S. colleges reported zero incidents of rape in 2015, according to an American Association of University Women (AAUW) analysis of data provided by schools to the U.S. Department of Education. This is quite obviously a misrepresentation, as there are far more cases of sexual misconduct that go unreported. According to a 2014 report by the U.S. Department of Justice, over 80 percent of women don’t report their rape or sexual assault to police at all.

We clearly have a problem in this country not only with sexual misconduct on campuses, but furthermore with how administrators on these campuses are addressing the problem, including most of all the failure to create an environment where victims feel safe and supported when facing these awful issues.

Having said that, we cannot overcorrect in the opposite direction, which is what we’ve done for the past five or six years. What I mean by that is we cannot automatically assume the guilt of the accused, even if the accusation is repulsive, or disgusting. Moreover, college administrators should not take punitive action against the accused before first allowing for due process to take its course, even if that process is slower than some might like it to be.

As DeVos told a CNN reporter: “Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates. And any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.”

I don’t know about you, but it comes down to just that for me: fairness, equality and an active avoidance of discrimination. Let’s hope DeVos can get us closer to those ideals.

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Accusation does not always mean guilt: Why DeVos is right about changing campus sexual misconduct procedures