Imagine if Donald Trump, a man accused of sexual assault by more than a dozen women, were able to write the standards by which he would be judged. Don’t imagine: Just look at the new rules being promulgated by the president that will govern how accusations of sexual assault at schools and colleges are handled.
One of the worst would allow for cross-examination of accusers in real time, traumatizing victims all over again. Others change the standards of proof, notice and jurisdiction. Some make it easier for schools to escape responsibility altogether.
The way schools handle assaults now is a hodgepodge of procedures cobbled together school by school after President Obama sent a letter out in 2011 as campus assaults were increasing. The letter warned that administrators should do a good job handling cases, without offering a lot of specific guidance, or risk losing federal funds that schools get under Title IX, which prohibits sexual discrimination.
Critics argue that schools generally tilted by default towards “I believe her,” depriving males of a fair shake—although the opposite bias is the reason #MeToo exists.
What a review of sexual discrimination cases on campus shows is that accusers have a steep hill to climb to get justice, that false complaints are minimal, and that a complainant is often subjected to additional harassment if the male is popular, in a fraternity, or an athlete—why would she go and hurt our team? Schools have lobbied Washington to reduce their burden, not increase it.
Enter Trump, the last person who should be setting standards on matters sexual. He’s on the record as having embraced “you can do anything” to them, reinforced recently during the Kavanaugh hearings. He conceded that Dr. Ford was “credible” but that didn’t keep him from shaming her at a rally or believing a “good man” should not only be spared punishment or approbation, but awarded a prestigious job.
For coeds, seeing Dr. Ford turned into the villain is proof that the most perfect complainants can be destroyed by coming forward. For Trump, this moment in sexual jurisprudence left him very, very concerned about “young men in America,” for whom it’s “a very scary time.”
Young men, relax. The rules promulgated by Trump’s Education Secretary Betsy Devos will make the world a less scary place for you. In addition to allowing cross-examination, any harassment must be “so severe, pervasive, and objectively offensive” that it denies a person equal access to education. Objectively offensive gets rid of the proverbial overly sensitive victim sent to the fainting couch over “that’s a nice dress you’re wearing” but it is way too broad to be helpful. Is it “pervasive” if the harassment is one virulent act? At least one court says no.
Schools can now choose a higher standard of proof over the current “preponderance of the evidence” that will be harder for victims to meet. Moreover, a school’s purview is limited to acts committed on campus or at officially sanctioned activities. What happens at an off-campus bar or housing stays there. Also a victim has to notify the right “corrective authority.”
The Trump rules would have done nothing to save the women of Baylor University, violated in 52 rapes by 31 members of its football team between 2011 and 2014. Many attacks, including gang rapes, took place off campus. The coaches knew, but not the right officials who had deniability. Not until journalists investigated and parents sued did players get indicted and jailed. Cowering through all this was Baylor president Ken Starr who finally resigned in disgrace (but with a $4.5 million severance) in 2016. This is the same Ken Starr who dug up and graphically described every moment of President Bill Clinton’s affair with Monica Lewinsky. According to the Dallas News, Starr had been on the short list of candidates Trump considered to head the Office of International Religious Freedom.
In one case in Arizona, the court found that a school had no responsibility to discipline the son of the principal and a star athlete because his assault on a ninth-grader was outside school grounds even though the plans to meet were made at school. The school did its duty, the law found, by telling the girl’s parents to transfer her to another school.
Hearings at schools are not courtrooms, the consequence is not prison, and one goal of the process has to be not to traumatize a victim all over again. As awful as it was when Sen. Lindsey Graham announced that he’d “listen to the lady” but wouldn’t believe Dr. Ford, at least it wasn’t Kavanaugh himself in the room snarling at her.
There have been male students unjustly expelled but the new rules won’t necessarily prevent that, while they would deter reporting. Trump said that Ford and “her loving parents” not coming forward at the time of the assault was one reason he sided so strongly with Kavanaugh. He can hardly think his rules would have propelled her forward.
In reading through the cases, almost everyone who finds themselves in a hellish campus dispute over sex gone bad has imbibed massive amounts of alcohol, leaving one or both parties severely impaired. Without a cultural shift akin to mothers making drunk driving socially unacceptable, no rules—not Obama’s, not Trump’s—will save us from the tragedy of sexual assault on campus and the burden of trying to find justice for two kids.
That doesn’t mean Trump shouldn’t try harder. The time for public comment is over. It ended Feb. 15. But there’s still time for serious reflection.