Month: March 2020

Categories
Title IX

Tenth Circuit: There’s nothing we can do about accused student’s ‘railroading’

An appellate court decision last week illustrates the uphill battle that often faces students who seek relief from unfair campus disciplinary proceedings in court — but several other recent decisions suggest a potential path forward for these students.

In its March 9 opinion in Doe v. University of Denver, the U.S. Court of Appeals for the Tenth Circuit acknowledged that a student’s sexual misconduct disciplinary proceeding appeared to have been nothing short of “a railroading,” but still dismissed his claims against the university.

The student plaintiff, John Doe, had sex with a fellow student, Jane Doe, in October 2014. Six months later, in April 2015, Jane’s then-boyfriend reported the encounter to an RA as a sexual assault. The university then contacted Jane, who filed an official complaint with DU’s Office of Equal Opportunity. The allegation was non-consensual sexual intercourse based on coercion, which the university defines as “‘unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will,’ such as ‘continued pressure’ after ‘someone makes clear that they do not want to engage in sexual contact.’”

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Among other things, John’s lawsuit alleged that in adjudicating his case, DU — a private university — had discriminated him on the basis of his sex in violation of Title IX. John made several arguments in support of this claim, but ultimately, the viability of his Title IX claim turned entirely on whether the court felt that obvious anti-respondent bias — at a school where 100% of respondents in recent years had been male — was sufficient to sustain a claim of gender bias.

First, John argued that the Office for Civil Rights’ 2011 Dear Colleague Letter, and the pressure DU felt to comply with it (as evidenced by a number of steps the university took in its wake) gave rise to “an inference of gender bias.” Like many other courts, the Tenth Circuit held that this alone was insufficient to constitute evidence of gender bias. Rather, John would have also needed to show evidence “that would indicate that DU’s decision in his particular case was based on his gender,” which the court held he had not done.

Next, John presented “statistical evidence showing an overwhelming disparity in the gender makeup of sexual-assault complainants and sexual-assault respondents at DU.” Specifically, “between 2011 and 2016, nearly all complainants (35 out of 36) were female, and all respondents (36 out of 36) were either listed as male or could be presumed to be male based on the nature of the complaint.” The court held, however, that there were many “nondiscriminatory explanations” for this disparity, so it could not be treated as evidence of gender bias absent “something like an affidavit from a knowledgeable person stating the school exhibits a pattern of prosecuting complaints against male but not female students.”

John also presented evidence of what he argued was gender bias in DU’s sexual misconduct proceedings, such as training materials referring to complainants as “survivors” and directing administrators to “communicate that you believe the survivor.” The court held that this “evidence demonstrates at most that DU had an anti-respondent or pro-complainant bias, which is insufficient to create an inference of anti-male bias.”

Finally, John presented extensive evidence that the university was biased against him in his own disciplinary proceeding. The court agreed that there was “colorable evidence” that the university’s proceeding was biased, based on the fact that the university (among other things):

  • “refused to follow leads that were potentially exculpatory”;
  • “disbelieved Plaintiff from the outset due to the ‘innate motive’ respondents have to lie about wrongdoing … while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial reporting and subsequent interviews”;
  • “emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend”;
  • “suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication.”

The court wrote that “an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading.” (Emphasis added).

Then, in a remarkable passage dismissing John Doe’s Title IX claim, the court wrote:

We are not unmindful that the combination of this statistical disparity and overt anti-respondent bias—a combination not unlikely to recur with some frequency at other schools—raises palpable concerns that schools might be making a distinction without a real difference and that stereotypes and prejudices against a class protected by Title IX (males) are beginning to infect the enforcement of sexual-misconduct policies under the auspices of presumptions regarding an unprotected class (respondents). Nevertheless, these concerns do not alter the obligation of a Title IX plaintiff opposing summary judgment to adduce evidence from which a reasonable factfinder could infer that the school’s proceeding was motivated by considerations of gender.

This is the starkest exposition yet of something that a large number of courts have already held: egregious anti-respondent bias does not support a Title IX claim — even if most or all respondents are male — unless there is evidence tying that specifically to gender bias. That is because there is no claim under Title IX for “disparate impact”; rather, there has to be evidence of intentional sex discrimination.

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Due process

First, at public universities, obvious anti-respondent bias may be a constitutional due process issue. While Title IX is limited to remedying bias based on sex, due process requires a proceeding free of any sort of bias. Recently, several courts have held that evidence of anti-respondent bias was sufficient to sustain an accused-student plaintiff’s due process claim.

In Averett v. Hardy, No. 3:19-cv-00116 (W.D. Ky. Mar. 3, 2020), for example, the plaintiff alleged that the university’s investigator, who also served as the presiding hearing officer, was biased against him. Among other things, he alleged that the investigator only sought out evidence that confirmed his guilt, and that she “forced him to truncate his written witness statement which prevented him from fully presenting his defense.” The court agreed that this constituted a plausible due process violation.

Similarly, in Doe v. University of South Alabama, an Alabama federal district court held that the student plaintiff had plausibly alleged a due process violation based on “allegations that indicate there may be a personal relationship between individual defendants and accusers or interested parties,” resulting in impermissible bias.

Breach of contract

At both public and private universities, biased proceedings may also give rise to a breach of contract claim where the university promises a fair and unbiased process. In Doe v. Rollins College, the U.S. District Court for the Middle District of Florida used the same evidence to grant summary judgment to the college on the student plaintiff’s Title IX claim, but to deny summary judgment to the college on his breach of contract claim.

On his Title IX claim, the court held that while the plaintiff had cast articulable doubt on the outcome of the proceedings, he had not presented evidence of gender bias. The court agreed that the college had taken a “victim-centered” approach to the case, but, like so many other courts, held that pro-victim bias was not equivalent to gender bias.

The court then held, however, that Rollins may have breached its own policy promising to provide a fair resolution in disciplinary proceedings. Specifically, the court held:

[Plaintiff John] Doe did not provide sufficient evidence of gender bias for a Title IX claim, but he did provide sufficient evidence that Rollins favored the reporting student. Doe presented evidence Rollins didn’t treat him fairly or equitably—deciding he was responsible before hearing his side of the story and failing to follow procedures mandated by the Policy and Responding Party Bill of Rights. There is a genuine dispute whether Rollins responded fairly and equitably to Jane Roe’s allegation, precluding summary judgment.

In another recent decision, a New York federal district court found in Doe v. Syracuse University that by making a “result-driven determination” that was not “rationally based on the evidence,” Syracuse University may have violated its contractual promise to adjudicate sexual misconduct claims using a preponderance of the evidence standard.

Choose your claim carefully

These decisions illustrate that while Title IX claims continue to be an imperfect vehicle for accused students seeking relief from campus disciplinary proceedings that are stacked against them, those same claims of bias may prove stronger in the due process or breach of contract contexts, which do not require a showing that the bias was gender-specific.

Categories
False Allegations

False Allegations Harm True Victims

False allegations have become a major barrier to victims of sexual assault getting the help they need. As trivial and false claims clog the system and consume scarce resources:

  • Victims are less likely to report the crime because they worry they won’t be believed
  • Police are less likely to investigate
  • Jurors are less likely to believe the victim
  • Shelters and other social services are forced to turn persons away

Now, a growing number of persons are speaking out on the problem of false allegations:

  • Rape is No Joke: “Enormous damages are done by making a false allegation of rape”
  • DA Hallie Dixon: “False reporting…can be detrimental to the prosecution of legitimate crimes.”
  • Judge Kevin Kilrane: False accusers do “tremendous damage to genuine victims of rape who are going to be undermined.”
  • Judge Stephen Hopkins: “Every false allegation of rape increases the plight of those women who are genuinely victims of rape.”
  • Justice Enriques: “False complaints of rape necessarily impact on the minds of jurors trying rape cases.”
  • Columnist Andrea Peyser: “This could present a huge problem for future rape victims.”
  • Columnist Myron Pitts: “Real victims of assault are never helped by phony claims. It is already difficult enough for women to report to police such a traumatic experience.”
Categories
Campus Sexual Assault Title IX

OCR Is About to Rock Our Worlds

ATIXA, the association of Title IX administrators I serve as president, anticipates publication of the final Title IX regulations in the Federal Register within the coming weeks. The federal government last issued Title IX regulations in 1975, so this is somewhat unprecedented. The proposed changes are far more sweeping than the 2011 Dear Colleague letter promulgated by the Office for Civil Rights (OCR). The changes coincide with a due process revolution occurring in some federal courts, as well, with respect to college and university disciplinary processes.

What Will These Changes Mean for Higher Education?

Perhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications. Many of the more controversial changes will probably be addressed by a future Congress or through litigation. Some of the proposed changes included in the draft that OCR shared publicly last November may not make it into the final rule.

Most of the changes revolve around due process, which protects all of us, regardless of our campus role or status. They include provisions requiring more substantive written notice to the respondent of the nature of sexual misconduct allegations, the right of the parties to review investigation materials prior to a final determination and the right to a written rationale for the outcome and any sanctions assigned. For the most part, these are rights you would want to protect you if you were accused — rightfully or wrongfully — of sexual misconduct.

What Do We Do Now?

We at ATIXA suggest that colleges and universities continue to honor “best practices” commonly adopted by the higher education field, while moving gradually toward implementing the changes that the regulations will require. Some changes, like equitable interim resources and supports for responding parties, can be implemented now without radical alteration of programs. In its 2011 guidance, OCR was explicit about the need for institutions to provide broad-based supports and resources to victims of sex discrimination, such as counseling services, academic accommodation and housing changes. Now, OCR is making clear its expectation that those supports and resources also be offered to respondents. Many colleges already do so, but OCR wants to ensure uniform provision of services by all funding recipients.

Similarly, colleges can act now to extend all VAWA Section 304 rights to parties in sexual harassment cases. In 2014, Congress enacted amendments to the Violence Against Women Act (VAWA), which now are incorporated into the federal Clery Act. These changes codified as law some provisions of Title IX that were previously only proffered as regulatory agency guidance and added many provisions requiring training and prevention by colleges. Oddly, the protections of VAWA Section 304 only extended to what have become known as the “big four” offenses of sexual violence, dating violence, domestic violence and stalking. That created an asymmetry because Title IX protections include not only these four offenses but also conduct like sexual harassment and disparate-treatment sex discrimination that VAWA does not. Institutions were left with two competing laws that did not fully parallel each other. OCR’s proposed regulation logically aligns VAWA and Title IX so that rights do not vary by the type of sex offense alleged.

Thus, institutions can take steps such as providing written notice of the outcome of an allegation to all parties, not just in the big four offenses, but for sexual harassment, too. Additionally, institutions can ensure equitable provision of advisers across all cases impacted by Title IX, not just for those involving the big four.

These kinds of changes will give administrators a head start on compliance before the regulations are even released. Once released, there will be an implementation grace period of perhaps 90 days to as much as 12 months from publication of the final rule to allow colleges and universities time to move toward compliance. So we’re still some months from an enforcement deadline, even if we are unsure what that deadline will be.

What Do We Do When the Regulations Are Published?

Higher education needs to move toward compliance or to decide to litigate the validity of the regulations against the U.S. Department of Education — or both. OCR is obligated to address, in aggregate, the nearly 130,000 comments it received during the public notice-and-comment period. The pressure is on for OCR to make it clear in its responses that its rules are rationally related to the statute, especially with a U.S. Supreme Court that appears increasingly hostile philosophically to agency rules.

Once OCR publishes the final rule, it will expect good-faith efforts to comply. With respect to litigation, it’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined. Unless and until a judge says that they don’t have to comply, colleges and universities will need to become compliant.

It took the higher education field three to four years to fully implement the 2011 guidance, but that kind of lethargy won’t be an option with these new regulations. They will have the force of law behind them rather than simply serving as guidance. Drag your feet on implementation and responding parties will sue the minute you are not according them the full panoply of rights OCR has promised them. Fail to provide the responding party with a copy of the investigation report or sufficient time to prepare for a hearing and you should expect a motion for a temporary restraining order from their lawyer.

The catch-22 is that when you move to compliance, activists will sue to argue that the regulations are ultra vires and anti-victim expansions of agency authority. They will surely challenge provisions that require disclosure to responding parties all evidence provided by reporting parties, even when that evidence is not admissible or used to support a decision. This rule will create a chilling effect on reporting parties and, it will be argued, is beyond the scope of OCR’s authority to enact under the statute. Similar arguments could be made to collaterally attack OCR’s proposed requirements for live hearings and cross-examination facilitated by the parties’ advisers. In fact, activists aren’t the only cohort likely to attack such provisions, as some private colleges are also planning to litigate any attempt to impose a live hearing requirement on them, and have already funded a significant war chest to do so.

Within this highly politicized crucible where any action or inaction will catalyze litigation, institutions need to form committees, task forces and Title IX teams now, so that administrators can study the regulations and commentary when they are published and change what needs to be changed. Faculty grievance processes will be an issue that administrators will have to face and resolve now, if they didn’t back in 2011. OCR is forcing the issue, and Title IX offices are probably going to be between a rock and a hard place — with faculty members who advocate for additional protections, such as clear and convincing evidence as a standard of proof for those accused of sexual assault, while others strongly advocate for preponderance of the evidence.

What Do We Do If We Don’t Agree With Some Provisions Within the Regulations?

About 20 to 25 percent of the regulations are potentially very detrimental to the cause of sex and gender equity in education, and we will need as a field to find ways to work within those requirements, challenge them in court or find clever work-arounds. Proposed provisions on notice, mediation, mandated reporting, live hearings and cross-examination could create significant chilling effects on the willingness of those who experience discrimination, harassment and sexual violence to report it to administrators and pursue formal resolution pathways.

Let’s drill down on each of these proposed provisions a bit. OCR seeks to limit the ways in which recipients are legally put on notice of sex discrimination. Institutions might see this as a welcome safe harbor, but why would colleges and universities want to make it harder to report and respond to incidents? The opening of access and “no wrong doors” approach to intake has been one of the most valuable and enduring legacies of the 2011 guidance, and it has resulted in substantial increases in reporting of incidents for most colleges.

OCR also now plans to remove the “soft ban” on mediation of sexual violence it implemented in 2011. The vast majority of sexual harassment claims can and should be resolved informally, but we need to be sure that the parties are participating voluntarily and not being pressured to minimize the severity of what has happened to them. And many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence. Lower-level sexual harassment is very amenable to resolution via mediation, but the data on whether the same is true for violent incidents is much less conclusive.

Live hearings and cross-examination are the most controversial provisions of the proposed regulations. Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges. It will take a strong person to be willing to go through a process where they will be subject to cross-examination by the other party’s lawyer. And, importantly, no research indicates that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct allegation a full and fair opportunity to review and contest all evidence prior to a final determination.

In light of all of this tumult, perhaps the healthiest mind-set is to view the regulations mostly as setting a floor for compliance and to institutionally commit to aim for the ceiling of best practices. Many organizations, including ATIXA, will continue to offer the field extensive guidance on how to evolve exemplary programs within the framework OCR is establishing, and outside it, where we can.

What is clear is that the pendulum is about to swing too far, again. The regulations have the potential to create significant public backlash, especially if colleges are seen as institutionally deprioritizing Title IX compliance in the coming months and years. Potential victims need to see you strengthening your program, not backing down. They are likely to perceive barriers to coming forward in the new rules, and administrators need to do everything possible to reassure potential victims that the Title IX office is still here for them, and that you’ll do everything not prohibited by the regulations to make reporting easier, offer services and resources, establish a process that is transparent and user-friendly, and avoid revictimization.

Regardless, some activists may turn some of their frustration with OCR on you, and we encourage you to be sympathetic, to encourage their voices and to be thoughtful about the ways that remedies-only and informal resolutions may be used to ameliorate or exacerbate the effects of the changes that OCR is catalyzing.

One thing is for sure — defining and maintaining sex and gender equity programmatic excellence in an environment of regulatory change, politicization of Title IX and fervent litigation will be among the most pressing challenges facing colleges and universities in 2020 and for some time to come.

Source: https://www.insidehighered.com/views/2020/01/15/how-respond-new-federal-title-ix-regulations-being-published-soon-opinion

Categories
Campus Sexual Assault

Right to counsel, right to confrontation among due process rights afforded to Arizona students under 2018 legislation

In 2018, Arizona enacted HB 2563 (now Ariz. Rev. Stat. § 15-1866), a bill on campus free speech that FIRE criticized for missing the mark in some key respects. FIRE’s analysis of the bill focused exclusively on the aspects of the legislation that affected students’ free speech rights. We recently revisited the bill’s language and found that the final version, while still flawed on free speech grounds, greatly expanded the procedural safeguards guaranteed to students enrolled at public institutions of higher education who are accused of misconduct. So today, we are pleased to belatedly report on the robust procedural protections provided by the statute. The relevant language in the statute reads:

In all disciplinary proceedings involving students, including proceedings involving expressive conduct, a student is entitled to a disciplinary hearing under published procedures that include, at a minimum, all of the following:

(a) The right to receive advanced written notice of the allegations.

(b) The right to review the evidence in support of the allegations.

(c) The right to confront witnesses who testify against that student.

(d) The right to present a defense.

(e) The right to call witnesses.

(f) A decision by an impartial person or panel.

(g) The right to appeal.

(h) If either a suspension of more than thirty days or expulsion is a potential consequence of a disciplinary proceeding under this section, the right to active assistance of counsel.

The original text of the bill limited the above rights to only those situations where a student was facing campus discipline for allegedly disrupting a campus event. The final text, however, applies these rights “[i]n all disciplinary proceedings involving students.” This significant change means that any student at a public institution of higher education in Arizona now has all of the substantive rights listed in the statute, including the right to receive advanced notice of the allegations, the right to review evidence, the right to confront adverse witnesses, and other key rights. (The statute only requires the school to share the evidence that supports the charges, however. Unfortunately, it does not require disclosure of exculpatory evidence in the university’s possession.)

Perhaps most importantly, in cases that could result in a suspension of more than thirty days or an expulsion, the student is entitled to active assistance of counsel. This is an incredibly important development that Arizona students need to be aware of, so they can fully exercise their rights. While FIRE will continue to urge the legislature to amend the legislation to fix the free speech problems it presents, we are excited to get out the word about the strong due process provisions now in effect.

Source: https://www.thefire.org/right-to-counsel-right-to-confrontation-among-due-process-rights-afforded-to-arizona-students-under-2018-legislation/

Categories
Campus Department of Education Scholarships Title IX Equity Project

PR: The 85 Worst Universities in the Nation Offering Scholarships that Discriminate on the Basis of Sex

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

 The 85 Worst Universities in the Nation Offering Scholarships that Discriminate on the Basis of Sex

WASHINGTON / March 16, 2020 – The Title IX Equity Project today is releasing a list of 85 colleges and universities in the nation with severe violations of the federal Title IX law that bars sex discrimination in schools. These 85 institutions offer at least 10 more scholarships for female students, compared to the number of scholarships for male students. The 85 colleges are located in 34 states across the nation: AL, AZ, CA, CO, FL, GA, ID, IL, IN, IA, KS, KY, LA, MD, MA, MN, MS, MO, NV, NH, NJ, NM, NY, NC, ND, OR, PA, RI, SD, TN, TX, UT, VA, WA, WI, and WY.

One of the worst offenders in the country is the University of Missouri – Columbia, which offers 70 scholarships for female students, and one for male students. The 70 female-only scholarships address a broad range of academic fields, including medicine, education, journalism, art, and other areas. The sole scholarship for male students, the Eric G. Rowe Scholarship Fund, is reserved for “deserving farm boys” who plan to attend the university’s School of Agriculture (1).

On September 20, 2019 the SAVE Title IX Equity Project sent a letter to Chancellor Alexander Cartwright listing the discriminatory scholarships and requesting a substantive response. The University never replied. On January 28, 2020, the Title IX Equity Project filed a formal complaint with the federal Office for Civil Rights, alleging a willful breach of federal non-discrimination requirements. The decision whether to open a formal federal investigation is pending.

Such disparities not only violate federal law, they offend basic notions of fairness. At the University of Missouri – Columbia, female students outnumber males, 11,789 to 10,695 (2).  Nationwide, 56% of undergraduate students are female, and 44% are male (3).

The listing of all 85 universities is available online (4).  The federal Office for Civil Rights is currently investigating over 80 sex-discrimination complaints that were filed by parties alleging discrimination against male students (5).

University of Michigan-Flint professor Mark Perry has commented ironically, “universities would never tolerate any special preferences for men or discrimination against women, but on the other hand, they not only tolerate discrimination against men and special preferences for women, but they actively promote, fund and endorse illegal discrimination…The illegal discriminatory programs are not being corrected internally despite huge staffs of diversity officers.” (6)

Citations:

  1. https://endowedscholarships.missouri.edu/SelectAllSchoalrship.aspx?action=Y
  2. https://www.collegetuitioncompare.com/edu/178396/university-of-missouri-columbia/enrollment/#gender-block
  3. https://nces.ed.gov/fastfacts/display.asp?id=98
  4. http://www.saveservices.org/equity/scholarships/
  5. http://www.saveservices.org/equity/ocr-investigations/
  6. https://www.aei.org/carpe-diem/an-interview-about-my-title-ix-complaint-vs-uw-stout/
Categories
Sexual Assault Start By Believing Victim-Centered Investigations

Too Little, Too Late: Review of EVAWI’s Updated Report on ‘Effective Report Writing’

Center for Prosecutor Integrity

In 2006, End Violence Against Women, Inc. (EVAWI) published a report titled, “Effective Report Writing: Using the Language of Non-Consensual Sex.” This report was deeply concerning, given its specific guidance that investigators begin their probe with an “initial presumption” of guilt for the prime suspect.  Noting numerous other concerns with this report, the Center for Prosecutor Integrity called on the Department of Justice to stop funding this project, which cost taxpayers over $8.9 million. [1]

In response, EVAWI updated their report, published under the same title. [2] This commentary reviews EVAWI’s 2019 version.

The Center for Prosecutor Integrity believes the need for a therapist to “believe the victim” is appropriate. But for an investigator or detective, “start by believing” is not appropriate because it undermines due process and violates numerous ethical codes of conduct.

Unfortunately, the central “believe the victim” concepts continue to be evidenced throughout the revised EVAWI report. The manual continues to be expressly designed to train investigators to prepare an investigative report that will “successfully support the prosecution of sexual assault cases” and to “record suspect statements, especially those that corroborate the victims account.” Investigators are also trained to “document suspect statements, especially those that corroborate the victim’s account or provide an implausible or even absurd version of reality. “ [2]

As does the original version, Effective Report Writing meticulously avoids the use of the neutral words “complainant” or “accuser,” and instead refers to complainants as “victims”.  In a landmark case involving Brandeis University, District Court Judge F. Dennis Saylor wrote it is presumptuous to assume someone is a victim in the investigative context because “[w]hether someone is a “victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.” [3]

Responding to criticisms by 300 legal professionals and scholars, EVAWI’s revised report avoids certain prejudicial statements from its earlier report, e.g., instructing investigators to “make sure” the incident does “not look like a consensual sexual experience” by making the complainant “appear more innocent”. [3]  No longer does the report state should there be inconsistencies in witness or defendant statements, investigators should highlight only those that “corroborate  the victim’s statement.”  [4]

In a related development, last year Drs. Susan Brandon and Sujeeta Bhatt evaluated a separate EVAWI report titled, “Understanding the Neurobiology of Trauma and Implications for Interviewing Victims.” [5]  Noting numerous scientific flaws, Brandon and Bhatt published a detailed critique of EVAWI’s report.[6] In response, EVAWI made numerous revisions to their report, which  Dr. Brandon noted in a recent Commentary.[7]

Both from Dr. Brandon’s recent Commentary and this one, it appears that EVAWI is reluctantly acknowledging there are risks in training investigators to be biased in favor of the identified victim. It’s a start, but 14 years after the original publication of its flawed report, EVAWI still has a long way to go to move from its advocacy of guilt-presuming investigations to embracing thorough and unbiased investigations.[8]

Links:

[1] https://www.evawintl.org/grants.aspx

[2]https://www.evawintl.org/library/DocumentLibraryHandler.ashx?id=43.

[3] http://www.saveservices.org/wp-content/uploads/VCI-Open-Letter-7.20.18.pdf

[4] http://www.saveservices.org/wp-content/uploads/SAVE-Believe-the-Victim.pdf

[5] https://www.evawintl.org/Library/Detail.aspx?ItemID=842

[6] http://www.prosecutorintegrity.org/wp-content/uploads/2019/09/Review-of-Neurobiology-of-Trauma-9.1.2019.docx

[7] http://www.saveservices.org/2020/03/commentary-on-evawis-revised-report-on-the-neurobiology-of-trauma/

[8] http://www.prosecutorintegrity.org/sa/doj-complaint/

Categories
Sexual Assault

The CDC’s Rape Numbers Are Misleading

Cathy Young is a contributing editor at Reason magazine.

“CDC: Nearly 1 in 5 Women Raped.” “One in Five U.S. Women Has Been Raped: CDC Survey.” These alarming headlines were typical of the coverage of last week’s Centers for Disease Control and Prevention report on sexual and intimate violence in the United States. The CDC study—the second in two years—seems to support a radical feminist narrative that has been gaining mainstream attention recently: that modern America is a “rape culture” saturated with misogynistic violence. But a closer look at the data, obtained from telephone surveys done in 2011, yields a far more complex picture and raises some surprising question about gender, victimization, and bias.

Both critics and supporters of the CDC’s methodology note the striking disparity between CDC figures and the Justice Department’s crime statistics based on the National Crime Victimization Survey (which includes crimes unreported to the police). While the CDC estimates that nearly 2 million adult American women were raped in 2011 and nearly 6.7 million suffered some other form of sexual violence, the NCVS estimate for that year was 238,000 rapes and sexual assaults.

New Republic reporter Claire Groden points out that while the NCVS focuses on criminal acts, the CDC’s National Intimate Partner and Sexual Violence Survey asks about instances of forced sex which respondents may or may not regard as crimes. Yet it is worth noting that in the early 1990s, the NCVS was redesigned to elicit more reports of sexual and domestic violence that may not fit the conventional mold of criminal attacks. In addition to being asked directly about rape, attempted rape or sexual assault, respondents now get a follow-up question about “forced or unwanted sexual acts” committed by a stranger, a casual acquaintance, or someone they know well.

The CDC study goes much further in asking about specific unwanted acts. But there are other important differences. For one, CDC survey respondents are not asked whether anyone has used physical force or threats to make them engage in a sexual activity, but “how many” people have done this (in their lifetime and in the past year). This wording removes the extra hurdle of admitting that such a violation has happened, and thus encourages more reporting. But could it also create “false positives” by nudging people toward the assumption that the default answer is affirmative—especially when preceded by a battery of other questions and statements about sexually coercive behavior?

A much bigger problem is the wording of the question measuring “incapacitated rape” (which accounted for nearly two-thirds of the CDC’s estimate of rapes that occurred in the past year). Respondents were asked about sexual acts that happened when they were “drunk, high, drugged, or passed out and unable to consent.” This seems to imply that “unable to consent” is only one of the variables and to include situations in which a person is intoxicated—perhaps enough to have impaired judgment—but not incapacitated as the legal definition of rape requires.

A CDC spokesperson told The New Republic that “being unable to consent is key to the CDC’s definition of rape.” Presumably, this is conveyed by the introduction to the question about alcohol- and drug-enabled rape: “Sometimes sex happens when a person is unable to consent to it or stop it from happening because they were drunk, high, drugged, or passed out from alcohol, drugs, or medications.” However, in a telephone survey, some people may focus only on the question itself and let the introduction slide by.

Moreover, the introductory message ends with an advisory that may create more confusion: “Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault.” Obviously, the intended point is that even if you got drunk, you’re not to blame for being raped. But this vaguely phrased reminder could also be taken to mean that it’s not your fault if you do something stupid while drunk or on drugs. At no point are respondents given any instructions that could result in fewer reports of alleged victimization: for instance, that they should not include instances in which they had voluntary sex while drunk but not incapacitated.

For many feminists, questioning claims of rampant sexual violence in our society amounts to misogynist “rape denial.” However, if the CDC figures are to be taken at face value, then we must also conclude that, far from being a product of patriarchal violence against women, “rape culture” is a two-way street, with plenty of female perpetrators and male victims.

How could that be? After all, very few men in the CDC study were classified as victims of rape: 1.7 percent in their lifetime, and too few for a reliable estimate in the past year. But these numbers refer only to men who have been forced into anal sex or made to perform oral sex on another male. Nearly 7 percent of men, however, reported that at some point in their lives, they were “made to penetrate” another person—usually in reference to vaginal intercourse, receiving oral sex, or performing oral sex on a woman. This was not classified as rape, but as “other sexual violence.”

And now the real surprise: when asked about experiences in the last 12 months, men reported being “made to penetrate”—either by physical force or due to intoxication—at virtually the same rates as women reported rape (both 1.1 percent in 2010, and 1.7 and 1.6 respectively in 2011).

In other words, if being made to penetrate someone was counted as rape—and why shouldn’t it be?—then the headlines could have focused on a truly sensational CDC finding: that women rape men as often as men rape women.

The CDC also reports that men account for over a third of those experiencing another form of sexual violence—“sexual coercion.” That was defined as being pressured into sexual activity by psychological means: lies or false promises, threats to end a relationship or spread negative gossip, or “making repeated requests” for sex and expressing unhappiness at being turned down.

Should we, then, regard sexual violence as a reciprocal problem? Getting away from the simplistic and adversarial “war against women” model is undoubtedly a positive step, as is admitting that women are human beings with the capacity for aggression and wrongdoing—including sexual assault. On the other hand, most of us would agree that to equate a victim of violent rape and a man who engages in a drunken sexual act he wouldn’t have chosen when sober is to trivialize a terrible crime. It is safe to assume that the vast majority of the CDC’s male respondents who were “made to penetrate” someone would not call themselves rape victims—and with good reason.

But if that’s the case, it is just as misleading to equate a woman’s experience of alcohol-addled sex with the experience of a rape victim who is either physically overpowered or attacked when genuinely incapacitated. For purely biological reasons, there is little doubt that adult victims of such crimes are mostly female—though male children and adolescents are at fairly high risk: as criminologists Richard Felson and Patrick Cundiff report in a fascinating recent analysis, a 15-year-old male is considerably more likely to be sexually assaulted than a woman over 40. The CDC reports that 12.3 percent of female victims were 10 or younger at the time of their first completed rape victimization; for male victims, that number is 27.8 percent.

We must either start treating sexual assault as a gender-neutral issue or stop using the CDC’s inflated statistics. Few would deny that sex crimes in America are a real, serious, and tragic problem. But studies of sexual violence should use accurate and clear definitions of rape and sexual assault, rather than lump these criminal acts together with a wide range of unsavory but non-criminal scenarios of men—and women—behaving badly.

Source: https://time.com/3393442/cdc-rape-numbers/

Categories
Start By Believing Trauma Informed

Commentary on EVAWI’s Revised Report on the Neurobiology of Trauma

In 2016, End Violence Against Women, Inc. (EVAWI) published a report titled, “Understanding the Neurobiology of Trauma and Implications for Interviewing Victims.”[1] Noting several scientific flaws, Dr. Sujeeta Bhatt and I published a detailed critique of the EVAWI report last September.[2]

In response, EVAWI made numerous revisions to their report, published under a new title, “Becoming Trauma-Informed: Learning and Appropriately Applying the Neurobiology of Trauma to Victim Interviews.”[3] The present commentary reviews EVAWI’s latest version.

My expertise lies in the domain of science-based investigative interviewing, not in the neurobiology of trauma. Co-authoring a response to the EVAWI 2016 paper sensitized me to some of the challenges faced by those responsible for investigating and adjudicating instances of sexual discrimination under Title IX (as a civil offense) as well as those responsible for investigating charges of sexual violence (as a criminal offense). Rape kits languish in police stations and those who assert that they have been sexually assaulted often are not believed and/or their complaints not investigated.

Responding to our criticisms, EVAWI’s revised report recognizes that not all victims of sexual assault display the symptoms described. For example, EVAWI now acknowledges, “the same event might be experienced as traumatic to one person but not another” (p. 15). Trauma-informed interview training should also provide an understanding of the neurobiology of resilience (a topic not addressed in the new EVAWI report), since not all those who are sexually assaulted are traumatized. Doing so may help an interviewer approach an alleged victim with fewer assumptions, which is critical to any investigation. Equally important, the authors point out that it is not “the investigator’s role to determine whether someone has experienced trauma” (p. 18).

The EVAWI report asserts that “traditional strategies don’t work with trauma victims” (p. 6). EVAWI appears to be referring to the often-accusatorial approaches used by American police investigators (e.g., the ‘Reid method’) or the question-and-answer tactics used by attorneys. These persons tend to assume that memories are best recalled in response to closed-ended questions, and that apparent resistance to answering questions indicates deception or a lack of cooperation.

What science has shown for the past several decades is that empowering an interview subject to tell their story with as few interruptions as possible is more likely to elicit reliable information, whether the subject be a victim, witness, source, or suspect. One method of such elicitation is the Cognitive Interview, developed by Ron Fisher and Edward Geiselman in the 1980s. The efficacy of the Cognitive Interview approach has been demonstrated in both laboratory and field conditions — see reviews by Memon, Meissner, and Fraser[4] and Dodier and Otgaar[5]. Although the revised EVAWI report does not explicitly reference the Cognitive Interview method, its description of a good interview approach (p. 7) closely tracks with that methodology.

As appears happens in both science and policy, we swing from one side of an issue to the other. Because some victims of sexual assault have been neglected by the criminal justice system, victim advocates often assert that alleged victims should be assumed to be telling the truth (“start by believing”) and not be challenged in their account. In my view, the latter risks a bias against the alleged perpetrator. All bias is problematic, and an investigator is most likely to uncover the truth when the investigator treats both alleged victim and alleged attacker with respect and empathy.

Science resides in neutral ground. My experience with proponents of trauma-informed interviewing leads me to believe that we will find the best science via engagement with each other – certainly, there are opportunities to address grievances on many fronts. Change happens when people on all sides of an issue work together.

Citations:

[1] https://www.evawintl.org/Library/Detail.aspx?ItemID=842

[2] http://www.prosecutorintegrity.org/wp-content/uploads/2019/09/Review-of-Neurobiology-of-Trauma-9.1.2019.docx

[3] https://www.evawintl.org/library/DocumentLibraryHandler.ashx?id=1364

[4] Memon, Meissner, and Fraser [2010], “The cognitive interview: A meta-analytic review and study space analysis of the past 25 years.”

[5] Dodier and Otgaar [2019], “The forensic and clinical relevance of evidence-based investigative interview methods in historical sexual abuse cases”.

Categories
Title IX

Secretary DeVos Announces New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools

U.S. Department of Education sent this bulletin at 02/26/2020 01:09 PM EST

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US Department of Education

February 26, 2020

Dear Superintendent:

I am pleased to share the following information with you regarding an important initiative within the Department of Education’s Office for Civil Rights (OCR). Today, Secretary Betsy DeVos announced that she has directed OCR to examine the problem of sexual assault in public elementary and secondary schools. As a part of this effort, OCR will focus on ensuring that school districts understand how to effectively respond, under Title IX, to complaints of sexual harassment and assault, including sexual acts perpetrated upon students by teachers, school staff, and personnel. I am writing to inform you of this initiative and to reiterate the significance of your efforts to ensure that every child has an opportunity to attend school free from concerns about sexual assault.

Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C §§ 1681 et seq. prohibits discrimination on the basis of sex in education programs and activities operated by recipients of Federal financial assistance. Title IX’s prohibition on discrimination includes many forms of sexual harassment and assault, which can interfere with students’ right to receive an education free from discrimination on the basis of sex. Furthermore, OCR requires that schools and districts take appropriate steps to address sex discrimination, including sexual harassment and assault. The requirements of Title IX apply to incidents of sexual harassment and assault, including incidents that involve student-on-student misconduct and staff-on-student misconduct.

In 2019, OCR’s receipt of K-12 sexual harassment complaints—which includes complaints involving sexual violence—was nearly fifteen times greater than it was a decade ago in 2009. OCR’s initiative will provide focused support in how schools respond to complaints arising from sexual assault. This multi-faceted initiative will include different components that seek to strengthen OCR’s Title IX enforcement in elementary and secondary public schools in the area of sexual assault and sexual violence. Specifically, OCR will engage in the following activities related to this initiative:

  • Conducting Compliance Reviews: OCR will conduct compliance reviews in schools and school districts, examining how sexual assault cases, including sexual incidents involving teachers and school staff, are handled under Title IX. As a part of this process, OCR will identify compliance concerns and work with schools to correct any identified noncompliance.
  • Raising Public Awareness and Support: OCR will focus on raising awareness of the issues of sexual assault and sexual violence in K-12 schools, including making information available to parents and families. As a part of this initiative, OCR will provide assistance to districts to effectively handle sexual assault allegations under Title IX through technical assistance, training opportunities, and sharing Departmental resources.
  • Data Quality Reviews: OCR will conduct Data Quality Reviews (DQRs) of the sexual assault/sexual offenses data submitted by school districts through the Civil Rights Data Collection (CDRC).OCR will partner with the National Center for Education Statistics (NCES) to help districts accurately report sexual assault/sexual offenses through the CRDC.
  • New CRDC Questions: OCR has proposed, for the 2019-2020 CRDC collection, to collect more detailed data on sexual assault. Significantly, the proposed collection would include data elements that require reporting incidents perpetrated by a school or staff member. This is the first time OCR has specifically proposed including such data in the CRDC data collection. The inclusion of this data—if included in the final CRDC survey for the 2019-2020 school year—would make the CRDC collection the first universal collection to gather such data, systematically, by school.[1]

I recognize and appreciate your efforts to ensure that all students are safe and benefit from the educational opportunities guaranteed under Title IX. OCR is committed to supporting your school district as you work to ensure that appropriate processes and policies are in place to provide support to students and that you comply with the requirements of Title IX.

If you have any questions regarding this initiative, I encourage you to contact OCR’s Outreach, Prevention, Education and Non-discrimination (OPEN) Center. The OPEN Center is focused on providing technical assistance and support to schools, educators, families, and students to ensure better awareness of the requirements and protections of federal non-discrimination laws. You can e-mail the OPEN Center at OPEN@ed.gov, or call 202-453-6580.

Sexual harassment and violence are never acceptable and must be dealt with accordingly. This is particularly true when those in authority, such as teachers or school personnel, are involved in such incidents. This initiative further demonstrates OCR’s commitment to supporting schools in their implementation of policies and practices that keep students safe and engaged in the learning environment. OCR appreciates your efforts to ensure safe and supportive learning environments for all of your students, and we look forward to working with you.

Sincerely,

/S/

Kenneth L. Marcus

Assistant Secretary for Civil Rights

[1] See https://www.regulations.gov/document?D=ED-2019-ICCD-0119-0001. Note that under the proposed collection, for the first year of the collection—the 2019-2020 school year—reporting on this data element would be optional.
Categories
Title IX

Joe Biden’s Record on Campus Due Process Has Been Abysmal. Is It a Preview of His Presidency?

The 2020 hopeful used bogus statistics to change the way colleges treat students accused of sexual assault.

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Joe Biden
(Preston Ehrler/ZUMA Press/Newscom)

The rationale for the 2020 candidacy of former Vice President Joe Biden, a man who will be 78 years old on Inauguration Day, is that he is the great moderate hope. He is the man who will save the Democrats from their ever-leftward impulses by attracting the centrist voters who remain the majority of the electorate. But the key domestic initiative of his vice presidency was not middle-of-the-road at all. It was a declaration that the federal government must engage in a far-reaching, top-down intervention in the sexual interactions between young adults, setting new rules aimed at how students must behave and establishing harsh punishments for those who deviate.

Though his reputation rests on his moderation, Biden’s approach to campus sexual assault is part of a pattern: He identifies an actual problem, engages in inflammatory—and sometimes false—rhetoric about it, then fashions a harsh, overreaching response that sweeps up the harmless and even the innocent. He has been called to task on the consequences of this approach to the federal wars on drugs and crime. (As a senator, he was a key figure in overseeing comprehensive drug and crime legislation.) Over the years, and especially since announcing his presidential run, he has repudiated some of the policies he previously promoted.

But he continues to tout his work on campus sexual assault. He boasted about it at the second presidential debate. How did Biden come to advocate such extreme policies on this topic? And if he were elected, what would it mean for how he would govern?

An analysis this spring in The Chronicle of Higher Education gives Biden full credit for the campus reforms. “Advocates say the sweeping Title IX changes that have transformed higher education would not have happened without Biden’s support,” the Chronicle notes. (Title IX is the federal law that prohibits sex discrimination in education.) Campus security consultant S. Daniel Carter, who worked with the vice president on these issues, said, “This movement would not exist without Joe Biden.”

In response to Obama administration guidance, definitions of sexual misconduct on campus have become so expansive that virtually any word or touch that could be construed as sexual can be grounds for punishment. “Affirmative consent,” ardently advocated by Biden in numerous college speeches, became the widespread rule on campus (and the law for students in California, Connecticut, and New York). This means that each touch, each time, even between established partners, requires explicit—preferably verbal, preferably enthusiastic—consent.

With the arrival of #MeToo, Biden’s oft-stated desire to see campus policies spill into broader society got immediate traction. (It was no small irony that shortly before announcing his presidential run, Biden was accused by several women of unwanted touching, finding himself in the middle of the cultural detonation he helped set off.)

The work began with the worthy desire to stop sexual assault from happening to college women, and with the recognition that college administrators had too often failed to properly respond to students who sought their help. No one can doubt Biden’s passion for this cause, or his sincerity. But the reforms he championed were built on alarming rhetoric, dubious statistics, the presumption that the accused (virtually always men) are guilty, and a systematic gutting of students’ civil rights.

As the administration’s point man, Biden traveled the country, speaking to college officials and students, painting a grimly dystopian portrait of campus life in which inherently violent male students abuse their female classmates with impunity. One of his most frequently repeated phrases to college students is, “The greatest sin is the abuse of power, and the cardinal sin of them all is for a man to raise his hand to a woman.” He frequently told the story of Marla Hanson, a model whose face was slashed in 1986 in New York City by thugs hired by her landlord after she rebuffed his advances, and who was subjected to a brutal cross-examination at the criminal trial of her attackers. Biden used her case not only to illustrate the kind of peril young women confront, but the denigration female students can expect from officials if they report an assault.

He has often described, as he did to Teen Vogue in 2017, parents’ fears when they drop their daughters off at college. “Most parents don’t drive away saying, ‘Is she going to do all right in school? Is she academically qualified? Will she show up for class?’” he said. “That’s not the conversation going on. The conversation that’s going on is, ‘Is she going to be safe?’”

But Biden’s portrait is at odds with the copious record on how the majority of Title IX cases unfold. These generally begin as consensual encounters and, often because of alcohol and miscommunication, end up in dispute.

In a speech at the University of Pittsburgh in 2016, Biden said no one, not even a court of law, had a right to ask a woman reporting a sexual assault “Were you drinking?” or “What did you say?” Biden is an attorney and was the chairman of the Senate Judiciary Committee. Surely he knows that anyone investigating or adjudicating a sexual misconduct accusation must seek to ascertain what happened. Both the accuser and the accused must be questioned. Questioning should be done with care and respect. But how much an accuser has had to drink is often a crucial point—establishing the degree of intoxication can distinguish between whether the accuser had the ability to consent or not. Asking what an accuser said during a disputed encounter is the basic responsibility of any investigator.

Biden’s rhetoric set the tone for the administration’s approach, and it helped lead to policies that failed to uphold even the most basic rights of the accused.

An ‘Epidemic’ of Sexual Violence

When Biden become vice president in 2009, campuses were not on his agenda but domestic violence was. He was the author of the 1994 Violence Against Women Act, which he has called his “proudest legislative accomplishment.” One of his early acts as vice president was the appointment of Lynn Rosenthal, an expert on domestic violence, to be the first White House advisor on violence Against women. Her mandate was broad but vague. Among other things, she was to work with the Departments of Justice, Health and Human Services, and State on gender violence issues; there was no mention of the Department of Education or college campuses.

Then, in February 2010, NPR and the Center for Public Integrity jointly broadcast and published a series called “Seeking Justice for Campus Rapes.” It presented a horrifying portrait of “colleges’ failure to protect women” and the dismal treatment female students received from campus administrators.

The series slammed the Department of Education’s Office for Civil Rights (OCR). One headline was “Lax Enforcement of Title IX in Campus Sexual Assault Cases: Feeble Watchdog Leaves Students at Risk, Critics Say.” Russlynn Ali, Obama’s first head of OCR, was quoted saying that lenience on campus sexual assault was a Bush administration legacy that was about to change. The series gave the administration a focus for doing something big about women and violence.

As Biden later related in a 2016 interview in Mic, then–Education Secretary Arne Duncan “came to the president and me and said, ‘I’ve got an idea. Let’s use Title IX.’” And so, through 2010 to early 2011, the administration began formulating its campus effort. Lynn Rosenthal began meeting with academics who studied campus sexual assault. Student activists were invited to a Washington policy meeting and a reception at Biden’s home. But college administrators who handled sexual misconduct complaints were left out of the loop, and they didn’t seek input from civil liberties groups, defense lawyers, or others whose views might clash with activists’.

The work culminated in Biden and Duncan’s April 2011 announcement of sweeping new changes that were to affect the more than 4,600 institutions of higher education in the country. (NPR took credit for the new policy.) Biden has said repeatedly that the administration was compelled to act because of an “epidemic” of sexual violence, citing a statistic that “one in five” female college students would experience sexual assault before graduation.

That number came from an anonymous 2007 online survey of students at two universities. The definition of sexual assault was broad, encompassing everything from nonconsensual sexual intercourse to such unwanted activities as “forced kissing,” “fondling,” and “rubbing up against you in a sexual way, even if it is over your clothes.” The lead author, Christopher Krebs, told me in 2014 that because of the limitations of this single survey, “We don’t think one in five is a nationally representative statistic.” (Since then, other surveys, using comparable definitions of sexual assault, have returned similar findings.)

The administration’s new rules were initially declared in what’s known as the “Dear Colleague Letter,” a 19-page document from OCR laying out the changes the administration demanded of every school. This and other subsequent guidance created on campuses a far-reaching parallel justice system for sexual misconduct.

Inflated Numbers

Over the years, Biden has also told his own origin story of the Obama administration’s sweeping response to campus sexual assault. Since the passage of the Violence Against Women Act, Biden has often noted that the reported incidence of domestic violence in this country has fallen more than 60 percent. Biden said he wanted to get a picture of the incidence of violence against women in general, so he sent a top aide, Cynthia Hogan, to look at the numbers from the Bureau of Justice Statistics (BJS). Hogan came back, he told Mic, with “a devastating piece of information.” She found, he said, that “women between the ages of 14 and 24—we’ve made no progress. One in four on college campuses were being raped back then, or assaulted, the same way now.” In a speech this past March, Biden described his frustration at learning that for young women, “Nothing had changed since I drafted the law almost two decades earlier.”

But the findings from the BJS, a division of the Department of Justice, show just the opposite of what Biden describes. Nationally, violent crime peaked in 1991, then began its historic decline. Far from being unaffected by this drop, young women greatly benefitted from it. A BJS report titled Female Victims of Sexual Violence, 1994–2010 shows that during that period, sexual violence against females aged 12 and above declined 64 percent. Another BJS study, Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013, found that during the period studied, rape and sexual assault rates for women in college fell by 50 percent, with the most significant drop occurring during the first 10 years. The report also found that young women not attending college experienced a higher rate of sexual crime than those enrolled.

A political scientist at Boston College, R. Shep Melnick, analyzed the statistics in his book The Transformation of Title IX. He notes that the BJS report on women enrolled in college found that the rate of assault was 2.44 percent, about a tenth of the one-in-five number asserted by the administration. (When Biden refers to the BJS data, he has consistently and mistakenly substituted the results from the Krebs study.)

Sexual assault statistics are notoriously hard to gather and vary widely. Critics of the BJS numbers say their methodology results in a severe undercount; critics of the administration’s one-in-five assertion say the number is wildly inflated. Putting aside critiques of methodology, the BJS findings do provide a long-term, generally consistent data set, giving credence to the finding that college-age women, like other members of the population, have indeed benefited from the dramatic decline in crime.

It’s not clear where Biden’s misunderstandings came from, or why he kept asserting them without being corrected. It is true that the BJS statistics find that younger women are more likely to be victims of sexual crime than older ones. Young people, both male and female, are more frequent victims of crime across the board. It certainly makes policy sense to focus on this population. Both Hogan and Rosenthal have made public statements about presenting Biden with data showing young women are more likely to be victims of sexual crimes than older ones—but in these statements, neither asserted that statistics on crime against younger women hadn’t changed since the 1990s. (Hogan and Rosenthal each declined to comment for this story. Biden’s campaign did not respond to multiple requests for comment.)

Biden’s incorrect and hyperbolic declarations about sexual assault numbers have had serious consequences. These alarming claims became a catalyst for Biden and the entire administration—and now the entire Democratic Party—to embrace highly punitive treatment of accused students. Evan Gerstmann, a political scientist at Loyola Marymount University and the author of Campus Sexual Assault: Constitutional Rights and Fundamental Fairness, wrote in one article that the one-in-five assertion was “the kind of number one would expect in a war zone.” He noted it created “an atmosphere of panic” that was used to justify “the undermining of certain basic principles such as the presumption of innocence and a fair process prior to such drastic punishment as expulsion.”

Activists Get Their Way

A small number of young women activists drove many of the policy changes the Obama administration embraced. With an entrepreneurial spirit, they founded their own advocacy organizations: SurvJustice, Know Your IX, and End Rape on Campus. The women provided policy guidance and some testified before Congress and were guests at the Obama White House. Melnick describes in his book how the young founders of these groups made themselves players in Democratic politics, and how they effectively used traditional and social media to bring attention to their cause.

Powerful people readily took their cues from these young leaders. A longtime OCR investigator who retired before the end of Obama’s second term told me that the advocates really had “the administration’s ear. The Know Your IX people—the administration jumped when they spoke.”

One of the central goals of activists was to get the government to publicly embarrass schools by releasing a list of those being investigated by OCR for possible mishandling of Title IX complaints. As Alexandra Brodsky, a founder of Know Your IX, wrote: “Little motivates a school quite like some good old-fashioned shaming.” In a Tumblr post, Know Your IX leaders described a February 2014 meeting in Washington with top administration officials, including Rosenthal and the new head of OCR, Catherine Lhamon. The activists wrote that the Education Department “is worried that releasing the names of schools under investigation before the conclusion of the investigation would unfairly publicly tar schools’ reputations. We of course expressed our disagreement.”

The young women were most persuasive. At the April 2014 announcement of the White House Task Force to Protect Students from Sexual Assault, many activists were in attendance. Arne Duncan affirmed they had shaped administration policy. He said, “Without your collective leadership, this sea change simply would not be happening.” Biden hugged activists and said in his speech that fighting violence against women was “the passion of my life.” (Some of the activists Biden interacted with over the years, offering hugs and other physical comfort, spoke out this year saying his touches had been unwelcome.)

The public shaming the activists sought, and officials initially resisted, came in the form of OCR’s May 1, 2014, release of a list of the 55 schools then under investigation. By the time Biden was ready to leave office, the number of schools on the list had grown to 223.

‘See Something, Hear Something, Know Something, Say Something!’

After the release of the Dear Colleague letter and the other guidance that followed, schools drastically expanded prohibited behavior. As Melnick wrote, schools variously banned unwelcome “flirting,” “jokes of a sexual nature,” “innuendo,” “gestures,” and causing “embarrassment.” Being found responsible for harassment did not require an intent to harm or even to have directed the prohibited behavior at a specific person.

Young men began being investigated, adjudicated, and suspended or expelled for sexual encounters that all parties agreed began consensually, often assisted by alcohol, and that ended with differing perceptions—the cases often hinging on whether affirmative consent had been obtained for every act. It was not unusual for complaints to be brought weeks, months, even years after the episode. It was common for the accused not to be told the specific charges against him, not to be able to testify in his own defense, and not to be able to present exculpatory evidence and witnesses.

Biden can be given credit for being a job creator. Responding to administration demands, a vast new industry was created of on-campus Title IX professionals—Harvard has more than 50—and outside consultants. Peter Lake, a law professor at Stetson University and an expert on higher education law, estimates that colleges and universities have spent at least $100 million complying with the Obama administration’s demands. Title IX offices became powerful bureaucracies; Lake says federal mandates gave these officials “unprecedented” power. Schools desperate to avoid the wrath of Obama’s OCR, whose investigations had become grueling, multi-year procedures, sought to increase the number of punished students.

A Homeland Security–style regime of constant surveillance and reporting was encouraged; Drexel University’s Title IX office adopted the motto: “See something, hear something, know something, say something!” This approach was codified in the 2014 bystander education program, It’s On Us, which Biden says he came up with and recommended to Obama. With the specific goal of involving men on campus, it encourages students to take a pledge (more than 440,000 have) and earn a photo ID badge after they promise to, among other things, “Look out for someone who has had too much to drink,” “Call non-consensual sex what it is—rape,” and “Always be on the side of the victim.”

It is of course laudable for students to look out for each other, especially when people are intoxicated. But schools also encouraged hearsay and rumors to be reported to Title IX offices. As a result, male students have been punished on the basis of third-party accounts, sometimes over the vehement objections of their female partners.

Biden seemed oblivious to how his policies were unfolding, sticking instead with his portrait of violent men and callous administrators. In his 2016 interview in Mic, he asserted that college presidents have consistently suppressed the number of Title IX reports on their campuses, often failed to provide any training for students about Title IX (such training is required by federal law), and neglected to provide any support or counseling for those reporting they were victimized. In his March speech this year, he said, “The more prestigious the college, the less they did.” No doubt there are schools that have mishandled, and continue to mishandle, Title IX complaints. But his description is at odds with well-documented reality.

As the Obama administration’s Title IX directives multiplied, increasing numbers of critics, especially in law and academia, expressed grave concerns about what was happening on campuses. Members of the law faculties at Harvard and the University of Pennsylvania issued open letters demanding due process and fairness for the accused. The Foundation for Individual Rights in Education (FIRE), the American Bar Association, and the American Association of University Professors, among others, issued reports warning that the procedures were becoming so lopsided against the accused as to undermine their legitimacy. A group of mothers of accused sons founded Families Advocating for Campus Equality, to provide support for families of accused students and to advocate for changes to Title IX procedures.

Young men found responsible for sexual misconduct on campus have increasingly turned to the courts, filing civil suits against their schools, claiming they were unjustly punished and their educations ruined. More than 500 such civil suits have been filed, and of those that have received rulings from federal judges, the majority have been found in favor of the young men, with judges sometimes issuing scathing condemnations of school policies. U.S. District Court Judge F. Dennis Saylor wrote in response to a case brought by a student at Brandeis University, that the proceedings were “closer to Salem 1692 than Boston, 2015.”

Eventually, Obama administration officials met with a small number of critics, including people from FIRE and a group of concerned law professors, but the meetings had little effect. During his vice presidency, Biden effectively ignored such detractors. He continued his incendiary rhetoric, voiced no awareness of the challenges to his policies in the courts, and expressed no interest in a course correction.

Good Intentions Gone Awry

As the Obama years came to a close, officials went on victory tours to tout their accomplishments. Given the breadth of the changes on campus the administration brought about, one would have expected Biden to celebrate this success.

Instead, he made his work sound like a dismal failure. Days before the end of his term, he wrote an open letter to college and university presidents and other academic leaders and disparaged their efforts to stop campus sexual assault. He asked them, “Have we made sufficient progress to protect students and change attitudes on your campuses?” The answer was a clear no. Statistics on campus sexual assault remained unchanged, he declared, despite the administration’s concerted five-year effort. Biden had come to describe campus sexual assault as nearly impervious to improvement. In the 2016 Mic interview he said, “This is a toxin on college campuses.”

Then, in September 2017, Secretary of Education Betsy DeVos announced her intention to reform federal Title IX policy. She said what had been created was a “failed system” that brought justice neither to the accuser nor the accused.

Biden and virtually the entire Democratic Party responded with outrage. Unlike the Obama administration, whose reforms rested on a series of “guidance” documents, the Trump administration is going through the lengthy process of making its Title IX counter-reforms into federal regulations. While schools await release of these final rules, many college presidents and other campus officials have vowed to be a resistance force.

In a phone call to activists shortly after the DeVos announcement, arranged by It’s On Us, Biden angrily dismissed the notions that the accused have been treated unfairly and that male students have been “vilified.” He called critics of his policies “cultural Neanderthals.” He urged the activists to organize to prevent their college presidents from making any Title IX reforms. Picking up the language of the activists themselves, he recommended shaming and embarrassing the school leaders. Biden said, “Please, please remember: Shame, shame, shame is a powerful weapon in our fight.”

Since Biden announced his third presidential run, there have been hard examinations of the consequences of the laws regarding crime and drugs that Biden pushed as a senator during the 1980s and ’90s. A Politico story by Zachary Siegel shows Biden’s long record of incendiary rhetoric and bogus assertions about drugs. The laws he pushed instituted excessive punishments, led to mass incarceration, and vastly increased racial disparities in prosecution. Those efforts also failed to end drug use. Over the years Biden has been forced to acknowledge much of this and has expressed some remorse.

The New York Times has looked at Biden’s Senate work on federal crime legislation, noting that he used to trumpet his tough-on-crime stance. But now he has released proposals that would undo some of the harsh responses he helped put in place, such as mandatory minimum sentences, an increase in crimes eligible for the death penalty, and the prohibition on prisoners getting Pell education grants.

But Biden has yet to acknowledge that his work on campus sexual assault is another well-intentioned effort that went badly awry. Instead of making women safer, it spread panic and damaged the educations and opportunities of many young men who didn’t deserve it.