Reverting Title IX is a mistake

After the recent ad hominem attacks I received in response to my last column, I have decided to write on something less controversial: Secretary of Education Betsy DeVos’ recent revocation of part of the Obama administration’s Title IX guidance. Oh, wait, sorry: I meant more controversial.

What exactly did DeVos do? She has moved to rescind certain guidelines. Specifically, she is choosing to get rid of guidelines proffered in a Dear Colleague letter (DCL) on Sexual Violence, issued by the Office of Civil Rights in the U.S. Department of Education in 2011; the letter established the following guidelines for Title IX compliance: a preponderance of evidence standard in sexual assault cases (one need only be 50.01 percent certain that the accused is at fault), the right for accusing students to appeal “not guilty” charges, and the end of cross-examination of accusers.

Not only do I believe that DeVos’ revocation of the DCL a step backwards, but I feel that new campus sexual assault guidance (whether through executive, legislative, or university action) should be stronger than the old DCL guidance. In this piece, I will examine the effects of the DCL revocation on Princeton, then I will argue against Jessica Nyquist’s position that DeVos’ revocation of the DCL is a victory for “fair trials” in sexual assault cases.

Let’s evaluate the change in the DCL guidance on Princeton’s campus. This is somewhat difficult, since the change has not actually affected Princeton at all. According to Princeton’s Title IX Coordinator Michelle Minter, “In 2014, Princeton reached a voluntary resolution agreement with OCR, which included the preponderance standard of evidence. The September 2017 guidance specifically indicates that such voluntary resolution agreements remain binding. Therefore, the new guidance will not have an immediate effect on Princeton.” It is important to realize that the DCL guidance is accordingly still in effect at Princeton for the time being.

However, this topic remains important to consider given that new guidance may compel Princeton to adopt a different set of policies.

I will argue against the idea that revoking the DCL is a victory for “fair trials” in sexual assault cases. In a recent article, my peer Jessica Nyquist argues that DeVos’ move to increase the burden of proof in sexual assault cases above preponderance is a good move and helps protect the right to fair trials in these cases of extreme importance. I agree with Ms. Nyquist that Article IX did not necessarily promote fair trials. However, I disagree with her that the problem is that preponderance is too low a standard of evidence. The remainder of this column will argue that sexual assault trials are biased in favor of the accused. That is, the accused are treated most leniently before, during, and after the trial; accordingly, the preponderance guidance is instrumental to a fair trial for the accuser.

Firstly, we must note that accused and convicted rapists are often treated very leniently in sentencing. Brock Turner comes immediately to mind, but it also takes only a quick Google search to find many more examples. For those reading this in print and not online, that last sentence has seven hyperlinks.

Secondly, we must note the huge difficulty in even getting a trial or an accusation through in the first place. One of the most disturbing sexual assault statistics? According to RAINN, out of every 1000 rapes, 310 are reported to the police. 57 of these reports will lead to an arrest. 11 cases will get referred to prosecutors. Seven will lead to a felony conviction, and only six rapists out of 1,000 will ultimately be incarcerated. To put this in perspective, out of every 1,000 assault and battery crimes, 627 are reported to police, 255 reports lead to arrest, 105 cases get referred to prosecutors, 41 cases will lead to a felony conviction, and 33 criminals will be incarcerated. Rapists are difficult to bring to justice for their crimes, and increasing the standard of evidence only makes this more difficult.

Thirdly, I argue that fears of a lack of “fair trials” for the accused are rooted in deep-set fears of being falsely accused of rape. Rape is one of the most heinous crimes in society. Conviction as a sex offender is a life-ending offense, for good reason. I believe that the fear of lacking a “fair trial” is a response to a perceived ease of accusation. In a 2005 journal article published with the Vanderbilt Law Review, Nicholas J. Little argues in Part Vagainst the “Bogeyman of False Allegation.” False accusations of rape are no more likely to occur than false accusations of other major crimes, and false accusations also tend to be made by young women, whose accusations are dealt with rapidly and efficiently by police and prosecutors. Hence, it is perfectly reasonable to suggest a preponderance standard for rape cases, as it is clear that false accusations are no more dangerous than in other cases.

Given that most sexual assault is unreported, we should assume that more sexual assault than is reported occurs. Given that most sexual assault does not go to trial, we should assume that more sexual assault ought to go trial. Given that most false sexual assault accusations are exceedingly rare, we ought to assume that most sexual assault accusations did indeed occur, or at least occurred as often as any other major crime. Given that investigators usually weed out false accusations rather easily, we should assume that the false accusations that do occur will indeed be found out.

Hence, it is not the case that Title IX trials are unfair towards the accused, but rather that they are unfair towards the accuser. I am unfortunately limited in the scope of my article, but I leave you with my main premise here: Sexual assault victims deserve as much care, protection, and sympathy as we can possibly provide towards their allegations. From this perspective, reverting Title IX is a mistake.

Ryan Born is a junior in Philosophy from Washington, Mich. He can be reached at rcborn@princeton.edu.