A lawyer for the Department of Education’s Office of Civil Rights said it best. At last week’s National Sexual Assault Conference, OCR’s Rachel Gettler called inconsistent sexual violence data collection by government agencies “a never-ending issue.” She added with a chuckle, “We’ll see if the government can solve that.”
The annual conference at Washington’s Wardman Park Marriott spanned three days of meet, greet, and agenda-mapping for victim advocates, experts and policymakers. From crisply uniformed JAG officers to activists with edgy haircuts, the attendees were those whose jobs increasingly require expertise in the growing list of government regulations and guidances on sexual assault. Like any other industry conference, it should have been an ideal venue to learn from fellow field professionals’ practical knowledge. The problem? Within the federal government are multiple differing and conflicting approaches to defining and adjudicating sexual assault.
Recently, a report from the Government Accountability Office called out the Departments of Education and Justice for their vague and various definitions of sexual assault. They’re different from the definitions Health and Human Services, the FBI, and the Department of Defense use—and therefore detrimental to accurate data collection.
“There are specific reasons that various agencies have for using the definitions [of what constitutes sexual assault],” Gettler told me, while an Air Force JAG whose question she couldn’t quite answer stood by. Expelling an accused perpetrator of sexual assault from a college campus doesn’t have much bearing on a cadet’s request to transfer, it turns out.
At a Department of Defense panel earlier that day, a representative of the Army’s Sexual Harassment Assault Response and Prevention program introduced a word-choice challenge. She said, “I purposely use the term survivors because of the stigma of the term victim. And I know from a legal aspect we need to use the word victim, but I purposely try to frame things as survivors because it’s more palatable in this context.” The reasoning, apparently: No soldier wants to be called a “victim.” But, meanwhile across the hall, a lecturer on the role of race in sexual assault prevention heatedly objected to the term survivor: “This word is used to describe black women so often, and it’s problematic because we should not have to be resilient. We’re constantly thrust in situations where we’re forced to fight for our survival. Our survival should not be something that is fought for. It should be inherent.”
It’s a headache to parse what particular public policies require of the operations they oversee. Title IX, a Nixon-era clause in education reform law more recently coopted to combat campus “rape culture“, stirs together its suggestions with its requirements for all schools that receive federal funding. Administrators easily run afoul.
Fearing public shaming, litigation, or loss of funds, colleges go overboard in their zeal to find and internally investigate alleged assaults. At the breathlessly titled “Title IX and Sexual Violence: An In-depth Overview of Schools’ Obligations Under Title IX to Address Sexual Violence” seminar, Gettler from the Education department explained what, officially, should trigger a Title IX investigation. “It’s going to be up to the school. Some schools may say, for lack of a better term, they’re worried about liability and they’re going to go forward, you know, no matter what. Again that’s up to the schools. We don’t have control over that.” In other words, contrary to the White House slogan, it’s in fact not on us.
Two college administrators who sat next to me appeared to puzzle over some provisions. Between snacking on complimentary pretzels and intermittent Instagramming, both balked at a PowerPoint slide explaining the optional appellate process for Title IX investigations. One woman raised her hand to ask, “There’s no obligation to provide an appeal?”
Title IX says schools have to investigate sexual assault cases in house and decide them according to a standard of proof lower than what criminal cases require. In these makeshift courts, a preponderance of evidence, as opposed to guilt beyond a reasonable doubt, is all it takes to warrant a conviction. Schools must offer the alleged perpetrator and complainant equal opportunities to cross-examine witnesses and appeal the disciplinary decision—if they grant them those rights at all, that is. They don’t have to.
Indeed, by not requiring standard protections of due process, Title IX leaves room to discourage them. DOJ’s Deputy Chief for Civil Rights Educational Opportunities Emily McCarthy warned her audience of mostly educators, administrators and victim-advocates that even holding a hearing—expressly not required to decide a case, mind you—could “retraumatize” the victim. And by allowing students to appeal a disciplinary decision, a school might easily violate Title IX. McCarthy cautioned, “Schools should be aware about appellate processes, particularly those that have multiple levels. If the appeals process becomes unduly long, that may impact whether the school is meeting its obligation to have a prompt grievance process under the Title IX regulations.” But still, of course, it’s a risk left entirely up to the school to sort out.
Law enforcement doesn’t always help in campus cases, either, because the higher standard of proof for felony charges means a Title-IX ruling and that of a criminal case might likely conflict. And yet, according to veteran legal advocate Carol Tracy of the Women’s Law Project, meaningful work to try rape cases fairly and accurately won’t happen if the police aren’t at the table. Her Women’s Law Project joined a rape crisis center called Women Organized Against Rape (WOAR, pronounced “war”) to lobby the city commissioner for a case file audit of the Philadelphia police department in the 1990s.
Tracy cast their uphill work in contrast to the fervid anti-rape-culture movement that we find today. In those days, she said, “[They] didn’t even use the words ‘victim-centered.’ It was just, ‘Be competent.'” Back then, rape cases didn’t have their own jargon yet, and processing them fairly depended foremost on accurate data collection—a current failing of the federal government.
