Tweet Share Share Comment The system designed to handle allegations of sexual assault on college campuses is badly broken. Over the past 15 years, the rules have changed dramatically depending on whether a Democrat or a Republican occupies the White House; in March, they will change again. But the fundamental premise is the same: an adversarial system that pits one side against the other. It has been an abject failure. We need to burn the entire structure to the ground and build something radically different.
Since 2018, my staff, students, and I have represented students—mostly teenagers—facing these accusations as one of the free legal services we offer at the law school where I direct a criminal and racial justice clinic. Because we serve underrepresented, marginalized communities pro bono, our clients are first-generation, Black, Latinx, and Asian, all without the means to hire a lawyer. Win or lose, these young people suffer extreme psychological damage—some attempt or die by suicide—that delivers little to bring justice or resolution. That is also true for the students who accuse them. The ever-changing hodgepodge of rules over the past decade makes things even harder.
Under guidelines put in place by the Obama administration in 2011, when one student accused another of misconduct ranging from unwanted touching to rape, most schools used a single-investigator model in which one person—usually a school administrator—investigated and pronounced judgment. The accused was found responsible, and often suspended or expelled, if the investigator determined that it was “more likely than not” that the misconduct occurred—the lowest standard of proof in our legal system.
After deciding that this process was unfair to the accused, President Donald Trump’s Department of Education replaced it in 2020 with federal regulations mandating that colleges decide sexual assault cases with live hearings where advisers, often lawyers, could subject both sides to cross-examination and a neutral third party would render judgment. The Biden administration, believing that the Trump regulations are unfair because they diluted “crucial protections for students who are victims,” has promised to rescind them. The new regime permits the single-investigator model.
Advertisement Advertisement Advertisement Advertisement
The whiplash lays bare the raw politicization of sexual misconduct allegations among teenagers and young adults. None of these systems are fair. All suffer from the misguided belief that one person is always telling the truth and one is never. It is rarely so simple. Often there is no single truth, only maddening shades of gray and extreme levels of harm, particularly because both students are generally under the influence of alcohol or drugs during the time of the encounter. Consent, intent, desire—these can be fraught and confusing concepts for intoxicated not-yet-adults, most of whom are living away from home for the first time. A binary—of black and white, truth and lies, innocence and guilt—is more often than not a reductive and profoundly misguided framework.
Advertisement
There is a better option. Recently some schools have started to use restorative justice as an alternative if both parties agree to it. (The Obama guidelines banned mediation, which schools interpreted to mean also forbidding restorative justice, but it is expressly permitted under the 2020 regulations.) A lucky few of our clients have participated in that process instead. When that happens it can be transformative. Rather than facing off in a zero-sum game, the parties come together after extensive individual reflection and preparation. With a trained facilitator, they talk through what happened from their perspective—what they were thinking, feeling, and intending. Restorative justice in this context is often dismissed as touchy-feely Kumbaya hooey that lets rapists “off the hook.” It is anything but.
Advertisement Advertisement
Digging deep to confront painful personal failings and buried trauma, and admitting to this kind of harm, is incredibly difficult work. It strips our clients of their denial and their defenses. Harm is acknowledged and repaired. In many of those cases, the parties are not harmed further and there is healing.
Advertisement
Alissa Ackerman, a professor of criminal justice at California State University, is a rape survivor who has facilitated dozens of one-on-one meetings as a restorative justice practitioner. In what is known as a vicarious restorative justice process, she has also met with a man who spent 20 years in prison for a rape he committed that was similar to the sexual violence Ackerman experienced. (Ackerman has been unable to locate the perpetrator in her case.)
Advertisement
These experiences, Ackerman said, led her to stop thinking about perpetrators as monsters. She described the man as a deeply flawed human being who suffered trauma and abuse himself. “All his memories are of violence,” she said, “and he learned as a child that the only way to get what he wanted was to take it by violence.”
What is most crucial about the restorative process, Ackerman told me, is when accusers hear the other person say, “ ‘I harmed you, I am not going to gaslight you, what you experienced is real and I am the one who caused it.’ That is incredibly powerful for them.”
Advertisement Advertisement
Related From Slate
Mark Joseph Stern
Is the Biden Administration Really Turning Against Transgender Students?
Read More Under the adversarial model, by contrast, the accuser must repeat the story knowing that it will be subjected to probing, scrutiny, and doubt. The accused will make no admissions or acknowledgments and will provide no explanation—not of the complexity of the situation and not of the harm done. In a school setting, where the primary objective is to provide students with an education, the Title IX process provides the opposite. No insight is gained. Nothing is learned. There may be a finding and a punishment—or neither—but that victory, if there is one, is illusory. Inevitably there are appeals, and usually lawsuits. I have never, in all the cases I have handled, seen the adversarial process do anything other than cause the young people it is supposed to help more pain and misery.
Advertisement Advertisement
There should always be that opportunity for learning, even for seasoned attorneys working on these very difficult cases. Last September, my staff attorney and I became students ourselves. We enrolled in a yearlong certification program run by the University of San Diego that specializes in campus sexual assault cases. (Ackerman is one of the instructors.) The majority of the other students in our class are Title IX administrators. In my work advocating for my clients, I have often dismissed them as heartless bureaucrats bent on violating my clients’ rights and destroying their sanity. What I found was common cause with a group of well-intentioned people seeking better ways to help the students who come to them—both the students bringing sexual assault allegations and the students facing those allegations.
Advertisement Advertisement
One of my classmates has spent her entire seven-year legal career doing this work, first as a Title IX investigator and then as a deputy Title IX coordinator. She has worked at a private university on the East Coast and a large public university in the Midwest, handling or overseeing more than 500 campus sexual assault and sexual harassment investigations. She told me, “Over and over again, I was sitting in these extremely traumatic experiences with students where two things were true: One student experienced assault and the other student believed they had consent in the moment. I could see both perspectives.”
Popular in News & Politics
- Judge Aileen Cannon Is Quietly Sabotaging the Trump Classified Documents Case
- The Supreme Court Is Now Complicit in Texas’ Armed Standoff With the Feds
- The Supreme Court Is About to Seize Way More Power From Democratic Presidents
- What the Panic Over John Fetterman’s Mavericky Turn Is Missing
Choosing one side, my classmate said, “doesn’t make any sense.” She cautioned that while there are some clear-cut cases and students who need to be expelled, those are the exception. Often, expulsion is not the consequence the accuser is seeking. “I think society tells survivors what they should want, which is revenge. But revenge isn’t healing. Most students, when they come to me, say, ‘I don’t want this to ruin their life, I just want the behavior to stop, and I want them to understand that what they did is not OK.’ ”
I think we all want that. Our current system is not the way to get there. If we truly care about the health and well-being of our young people and are committed to teaching them to be self-aware, caring, and knowledgeable adults, we will stop seeing the Title IX process as a political football or an adversarial system that just needs another overhaul. We will start over with a reparative process. As the scholar and activist Fania Davis put it, “Justice is a healing ground, not a battleground.” At least, that is what it should be.
Tweet Share Share Comment - College
- Joe Biden
- Jurisprudence
- Sexual Assault
- Title IX
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
visit website
