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New directives on campus sexual assault raises more debate in Delaware

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Delaware Public Media
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The U.S. Department of Education rescinded Obama-era directives and issued interim guidelines last month to schools, colleges and universities on handling complaints of sexual violence on campus.

Some groups are praising the move by Education Secretary Betsy Devos, saying it supports more due process protections for the accused. But others argue she is weakening protections for victims.

Samantha McCoy was in her junior year at Indiana University Bloomington in May 2015 when she said she was sexually assaulted off campus by a male student. She reported the rape to the police and confided in a teacher who reported the incident to the school’s Title Nine coordinator.

McCoy said she was so stressed and overwhelmed during this time, she lost her job and became homeless. The university helped her get back on her feet and graduate. But she knows other survivors who feel like their schools let them down.

“I mean, I know I’ve heard a lot of horror stories about it not being taken care of properly, but I honestly felt like that was like my one time that I felt like I was protected and listened to," she said. "And I don’t think that without their protection and what they did, there’s no way I would have been able to continue going to college.”

McCoy went through Indiana University’s grievance process under guidelines issued by former President Barack Obama’s administration.

Both parties were allowed to submit evidence, bring witnesses to the hearing and write questions to each other during the hearing screened by school officials beforehand.

“Basically, I was just calling out all of the inconsistencies with like witness statements and what he was saying and he was able to do the same to me," she said. "So we turned those in and then the panel read them back and we had to answer them.”

While no criminal charges were brought, the school found him responsible and suspended him for about a year and a half.

Most of the victims of sexual assaults on campus are women. And while some argue attitudes have changed since Title IX was passed in 1972, others say attitudes haven’t changed enough.

Devos' new interim guidelines allow schools to use a higher burden of proof. Devos said the right of those accused of misconduct are often violated. She talked about one man who says he didn’t know he was accused of sexual harassment until he submitted an open records request to his school.

“But he was still denied notice of the specific allegations and he still remained suspended," she said. "This young man was denied due process. Despondent and without options or hope, he relapsed and attempted to take his own life. He felt he had let down everyone who mattered to him, including most of all his grandmother, who was so much looking forward to seeing the first member of her family don cap and gown. Whatever your accusers say you are, he told me, is what people believe you are.”

Title IX bars gender discrimination in educational programs and athletics that get federal funding. But for the first 20 years, it really didn’t address sexual assault and harassment on campuses.

Former Delaware State Sen. Karen Peterson said police officers persuaded her from filing a complaint against a man who raped her in 1975 when she was attending the University of Delaware.

“So, when I contacted the police, they said basically that I would be ruining the guy’s life and why did I want to do that and did I want to put myself through all that and you know, just pretty much talked me out of it,” she said.

It wasn’t until the 1990's that the Office of Civil Rights in the Department of Education asserted authority to investigate student-on-student sexual assault allegations. Today, schools and law enforcement have a parallel responsibility to investigate allegations.

But survivors kept complaining schools were letting perpetrators off with little or no punishment. There’s also a lack of convictions in the criminal justice system.

The Obama administration responded by issuing new rules. Schools should complete investigations within 60 days, use a lower the burden of proof and discourage the parties from cross examining each other. Joe Cohn with the group, Foundation for the Individual’s Right in Education, or FIRE, calls those rules an overreach. He said measures like banning the accused from campus or restricting his or her movements to avoid the victim before a hearing violates their constitutional rights.

“We also just fundamentally reject the notion that due process is at odds with the needs of victims and survivors," he said. "You can’t have fair procedures that don’t have the trust of the community, that don’t have reliable procedures that we can find out who did things and who didn’t.”

Cohn argues the federal government should do more to help complainants while also protecting the rights of the accused.

Candy Young is Delaware State University’s Title IX Coordinator. She said there was not a clear set of rules until the Obama administration issued its directives. And with them in place - she said DSU’s policies treat both sides fairly through the grievance process.

“Again, it’s in its infancy stages," she said. "So, we keep trying to get it better, to make it right, but the only way we’re going to know how to do that is we’re going to have to have something in place, have some guidelines in place and then at least stick with it long enough to say, ‘Ok, this is working very well, this is not working very well. Or this part seems to be good, we need to work on this piece.”

The University of Delaware also says its sexual misconduct policy - guided by those rules - provides a prompt and fair resolution of complaints.

State Reps. Valerie Longhurst and Kim Williams worked for more than a year on legislation expanding universities’ obligations for campus sexual assault complaints. Former Gov. Jack Markell signed the measure last year.

But Longhurst now worries Betsy Devos’ decision to let schools use a higher burden of proof in determining guilt will discourage victims from reporting sexual harassment or assault.

“I think by saying that, you’re basically saying ‘We don’t believe you,’" she said. "And I think that’s the biggest problem in her guidelines is that that will take it 100 steps back because that will not allow that person who was raped to come forward because they don’t think they will have justice.”

Longhurst said she needs to talk to universities in the state about what these changes could mean for students. And she plans on having a larger conversation about this issue - and what steps lawmakers and others can take - going forward.

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