Last week, the US Department of Education issued its final rules on the handling of sexual assault allegations that narrow the definition of sexual assault, increase protections for the accused and reduce schools’ liability in dealing with such cases.
Sexual assault and misconduct have long plagued US schools and universities. After decades of educational institutions mishandling and actively suppressing accusations of sexual assault, the Obama administration issued guidelines in 2011 and 2014 that expanded protections for survivors and increased the accountability of schools in handling complaints.
They did so, essentially, by widening the scope of Title IX—a federal law that defends people from being discriminated against based on their sex in federally-funded education programs and activities. Under the Obama-era guidelines, schools were obligated to take action on any sexual assault case they knew about or “reasonably” should have been aware of, and were instructed to adopt low standards of evidence in the adjudication process.
The new rules, which are due to go into effect on 14 August, upend the previous guidelines. Notably, they reduce the scope of Title IX and narrow the definition of sexual assault 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.” Schools are now instructed to dismiss complaints that do not fall under this new definition, regardless of the validity of the allegations.
The new rules also state that schools will be required to respond only to cases that took place during school-related activities (either on or off-campus), excluding study abroad programs, and give schools discretion in choosing the standard of proof they wish to uphold. Unlike the Obama-era guidelines, the new rules relieve coaches and other school employees (such as faculty and residential life staff) of the responsibility to report cases of sexual misconduct and assault—stipulating that only complaints that are made to designated Title IX coordinators will have to be addressed.
Education Secretary Betsy DeVos, for whom the completion of the new rules constitutes a considerable victory, defended her Department’s guidelines, stating that, “Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault (…) This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”
But many human rights advocates decry the new rules, arguing that they severely impinge on rights of survivors and foster a culture of institutional suppression and neglect around sexual assault. “If student survivors of sexual assault cannot prove that harassment escalated to the point that their ability to access education was ‘effectively denied’, then schools are not required to take action,” Divya Srinivasan, a human rights lawyer at Equality Now, told Screen shot.
“We know that sexual harassment and assault impacts victims in a variety of ways, for some it means they are not able to focus on work or school, but others cope by going about ‘business as usual’. For those that cannot prove that their education has been derailed, then they are left unprotected.”
“The new rules raise the standard of liability under which schools can be held accountable for ignoring complaints or failing to take action,” Srinivasan added. “Schools are only liable now if they were ‘deliberately indifferent’ in a way that is ‘clearly unreasonable’, making it extremely difficult for survivors to hold schools accountable for failing to take action on their complaints. Schools will now just need to tick certain procedural boxes and comply ‘on paper’ to avoid liability and they will be able to mistreat or bully survivors as long as their actions do not meet the high standard of being ‘clearly unreasonable’. The Department of Education has essentially allowed schools to go back to shoving sexual harassment complaints under the carpet, with little threat of being held accountable, gutting the very purpose of Title IX.”
One of the most controversial aspects of the new rules is the stipulation that calls for live hearings with cross-examinations to be conducted between accusers and the accused, in which the latter could question evidence and challenge the validity of the allegations. While students will not be addressing each other directly in such hearings, and will be able to request they be conducted virtually in separate rooms, many still worry that this procedure will compel survivors to withdraw their complaints or refrain from coming forward altogether.
“Many survivors could be coerced or pressured into agreeing to attend [mediation processes] by schools who are more interested in protecting their reputations than the well-being of the student. Such mediation processes can be used as a tool to silence survivors,” said Srinivasan.
The new guidelines are due to be challenged in court by human rights advocates, and could also be rescinded in Congress should Democrats regain control of the Senate and maintain their majority in the House in November’s elections.
But as legal battles are waged, it is important to view the new rules within the larger context of the Trump’s administration’s persistent attack on women. As women are statistically more vulnerable to sexual assault, particularly while in school, the new rules must be recognised for what they are: another attempt by the current government to chip away at the rights and protections of women.
Former US Vice President Joe Biden, who is now the presumptive Democratic nominee for November’s presidential elections, has come under increased scrutiny over the past few weeks as allegations of sexual assault against him were being corroborated. The accuser, Ms Tara Reade, claims that Biden had pinned her against the wall and digitally penetrated her in 1993 when she worked as a junior staffer in his Senator’s office.
Although several people have attested to the authenticity of Reade’s claims, Biden continues to vehemently deny them and enjoy the virtually unwavering backing of the Democratic establishment, which fears that any blemish on their candidate’s image would lead to a loss in the upcoming elections. As the story continues to unfold and the elections draw near, it is important to review the nature of the claims made against Biden, the reaction they evoked, and the consequences that ignoring that would have on the future of the #MeToo movement.
Reade first spoke out against Biden in April 2019, when she joined a group of women who claimed the former Vice President touched them in a way that made them uncomfortable. Fast forward to March of this year—after many failed attempts to gain the attention of national news outlets, Reade finally managed to come forward with her claim that Biden sexually assaulted her back in 1993. Reade argues that she had complained to Biden’s senior staffers at the time and informed them about the assault, and claims that their response was to, essentially, force her out of her position.
Over the past few weeks, Reade’s account has been corroborated by a close friend of hers, a former neighbour, and her brother, all of whom confirm that Reade had told them about the assault back in the 1990s. It took mainstream media platforms a few weeks, but ultimately news of her accusation began to spread like wildfire. Now, a resurfaced video of the Larry King Live show from 1993 further authenticates Reade’s claims. The video features the voice of Reade’s mother (now deceased), who called to discuss “problems” her daughter was having while working for a “prominent senator.”
Biden and his campaign categorically deny Reade’s accusation, saying that while they believe women should have the right to tell their story freely, this particular story is utterly fabricated. Biden’s assertions have been supported by his aides, former staffers, and a growing number of Democratic party members, all of whom attest to the integrity of his character and what they claim is an exceptionally stellar political record when it comes to fighting for women’s rights.
Some have gone as far as to debunk Reade’s account by questioning her motives (portraying her as a Russian spy) and highlighting the gradual evolvement of her testimony and her often stilted recollection of certain details. Some have also raised scepticism as to why it took Reade so long to come out with her accusation and pointed to several occasions over the past few years in which Reade had praised Biden’s actions as a politician.
It is widely known today that many survivors of sexual assault spend years in silence about their experience, and that those who do come forward eventually often reveal their story gradually and are fuzzy about some of the details surrounding the attack. In an interview for The New York Times, Scott Berkowitz, the founder and president of the Rape, Abuse & Incest National Network (RAINN), stated that it is common for survivors to have positive feelings towards and even admire their attacker. “With people who work for politicians, there’s usually a strong measure of loyalty or respect in that relationship. So it’s not indicative that someone wasn’t telling the truth,” said Berkowitz.
What is so unnerving about this case is that these exact same arguments were touted by Democrats in 2018 as they supported Dr Christine Blasey Ford when she accused Supreme Court Justice Brett Kavanaugh of sexually assaulting her. While neither case has a ‘smoking gun’, Reade has arguably more corroborating elements in her corner that Dr Ford did, and yet, the same Democrats who chose to believe Dr Ford now unanimously opt to stand by Biden, leading many to deduce that Democrats only advocate for women’s rights when it serves them politically to do so.
In an article for The Cut titled The Biden Trap, Rebecca Traister underscores the unique predicament this scandal puts female politicians in, and particularly the women on Biden’s shortlist for VP. Kamala Harris, Stacy Abrams and Amy Klobuchar have all publically stated they stand by Biden, reciting an almost by-the-book announcement that women should be free to tell their stories but their experience of Biden leads them to unequivocally believe him.
But, as Traister points out, whatever position female politicians choose to take at this point will be to their detriment; should they continue to side with Biden, they will be portrayed as hypocrites who betray their professed values in exchange for political clout, and if they so much as question his credibility they will be pegged as radical feminists largely responsible for four more years of Trump.
At the very least, people’s view of Biden should be highly nuanced from this point on, and any support of his candidacy should be balanced with a frank meditation on the grave moral dilemmas arising from having him as a presumptive nominee.
Yet, given the rising credibility of Reade’s allegations, it seems that the only moral course of action would be for the Democratic party to exercise its authority and replace Biden as the nominee. Yes, we face a sensitive situation and a fateful election ahead; and, yes, Trump too has a whole slew of women accusing him of sexual assault.
But Democrats have an opportunity to reject this culture of violence and complacency, and take a bold stance in favour of women’s rights. There will never be a ‘convenient’ time to hold powerful male figures accused of abuse accountable, and one cannot pick and choose when to challenge their impunity and when to give them a pass. Glossing over the testimony of one survivor is equal to silencing them all.