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New Title IX Guidelines: A Step Backward in the Fight to End Campus Sexual Assault

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BlackBirdEvolution

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**Please note: I use the term “victim” in this article. This is because “survivor” tends to be a term claimed by people who have chosen it some time after an incident, not typically used immediately. It involves at least a degree of processing what happened, what it means for them, if it is part of their identity, part of their past, or a combination of both, and what it means for their life moving forward.

Last month, new guidelines came out to clarify Title IX, which is legislation addressing (among other things) sexual misconduct on a college campus. Previously the “Dear Colleague Letter” in 2011 sought to give clarification around implementation and enforcement of Title IX. Like so many other things under this terrifying political regime, the new Dear Colleague Letter is notable in its regression from previous guidelines, and creates an even more difficult climate for individuals seeking justice in gender based misconduct/sexual assault cases.

In the previous Title IX guidelines, it was considered inappropriate to offer informal, voluntary mediation between parties when gender-based misconduct was involved. There are many reasons for this: “voluntary” is subjective (although shouldn’t be), and if a school has an opportunity to “mediate” an assault they may push to do so. Anyone who knows anything about sexual violence knows that victims tend to feel at least some level of responsibility and guilt for what happened. There is a tendency to process through what they did wrong, how things would have turned out better “if I had not had that drink” or “if I walked a different way home” or “if I just went back to my dorm room instead of stopping at my friend’s.” Thank you, rape culture, for making victims believe it is their fault for what happened to them. Even when people know intellectually that it is in no way their fault, emotionally is a whole different game. If a Title IX coordinator (or another college employee) suggests mediation, it can seem like a less intrusive way to navigate the complicated and overwhelming options. This puts the victim at risk for many things, not least of all being in a room with someone who violated them is likely not the easiest way to move forward. Additionally, if the victim is struggling with feelings that he/she/they are at least somewhat at fault, this can be easily exploited while sitting face to face with the perpetrator. It can increase the likelihood of the victim apologizing for something or for being momentarily appeased if the perpetrator apologizes for any part of what occurred. Putting a victim in the same room as the person who violated them increases the feelings of being in danger, eliminates any safety that might be offered in a different context, and may lead to an agreement simply to get out of the room and move forward.

The new guidelines also make it clear, much like Betsy DeVos has, that options need to be offered for the Complainant as well. On a college campus, the term “interim measures” is used to provide support for a victim in the aftermath of sexual violence/gender-based misconduct. Interim measures can include moving the victim’s room into another residence, creating specific hours that each person can go to the dining hall or going to separate dining halls, etc. The new guidelines suggest that the school should “make every effort to avoid depriving any student of her or his education.” This is a very short leap away from explaining that a person cannot be held accountable for their actions because they are a good (insert sport) player, they love their mother, they’re great in the classroom, etc. This is notable. The mandate now has shifted to making absolutely sure that a student’s education is not interrupted, meaning the priority is no longer justice for a victim but educational goals for the perpetrator as well. If a college employee tasked with investigating a Title IX complaint understands that the most important goal is to maintain education for both parties, he or she may make a different decision than when they were guided by the previous Dear Colleague letter.

While the letter has added (in a multitude of areas) a warning to prioritize education for all parties, there has been an even more notable omission. In the previous guidelines, “trauma-informed” was explicitly stated many different places to ensure that training come from a trauma-informed understanding and knowledge base. The term “trauma-informed” has been eliminated completely. It is literally nowhere in the letter, where it once held prominence. This means that no longer will professionals be required to understand things such as: Memories are not linear, reliving the experience is retriggering, details change due to the actual trauma, not due to lying or being untruthful, and so on. The previous guidelines stated that school officials should “be mindful that traumatic events such as sexual violence can result in delayed decision making by a student who has experienced sexual violence.” If a Title IX investigator does not have this base knowledge and speaks to a victim on several occasions, what conclusions might they draw if they begin hearing different details emerge? How might that individual respond if the victim takes a long time deciding what to do? Might they consider that the victim is lying? Exaggerating? Being dramatic? This removal allows the space for an investigation to mimic the pervasive victim-dismissing culture.

Of a smaller scale but notable nonetheless, the time frame of 60 days to complete an investigation has been eliminated. There are pros to this, certainly, as college professionals may feel more able to be methodical during an investigation without racing against the clock. My concern is that without a deadline there is no pressure to make a Title IX investigation a priority in an already packed work day, meaning a victim could be waiting for information about his or her case for extended periods of time. This is already an excruciatingly painful waiting period, and now it risks being more so.

The new Dear Colleague Letter eliminates the small amount of progress colleges and universities were making under Title IX, flawed though it sometimes was. If there is no understanding of how trauma impacts behavior and memories, then we are expecting people to operate in a very black-and-white, clear cut world in topics that are a million different shades of gray. The new guidelines are not only unrealistic and unhelpful, but they illustrate another giant step backward in the fight against sexual violence on campus. While sexual violence is already severely underreported, these guidelines will prove to encourage even less reporting due to the dearth of support for the victims.

Like so much of what we are seeing in politics recently, the new Dear Colleague Letter encourages erasure of victim rights while loudly yelling about being a champion of equity. We need to demand more options for victims, not less. We need to let this administration know that we see clearly through these guidelines and we demand change forward, not a return to more uneducated and damaging times in Title IX’s history.

 

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ELIJAH NOUVELAGE/REUTERS

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