In response: changes to US rules on campus sexual assault benefit nobody

In a Times Higher Education opinion piece titled “DeVos’ rule changes on handling sexual assault will benefit everyone”, Meg Mott applauds US education secretary Betsy DeVos’ proposal to relax existing Title IX rules on campus sexual assault as beneficial for all, including alleged perpetrators and victims.

She writes that the “Obama-era overreaction” to sexual assault on campuses has put university academics and administrators in an impossible position in which, among other problems, the policing of sexual impropriety has thwarted a truly critical pedagogy.

While we don’t have a comparable statutory structure afforded by Title IX in the UK, the discourse that Mott activates in objection to DeVos’ proposed reforms is remarkably familiar. It is characteristic of those opposed to any variation to existing criminal justice conventions in cases of sexual assault to revert to vague remarks about procedural “fairness” and “due process” without any consideration of what that actually entails and the structures upon which their operation rest.

For example, the article vaunts an optional return to a more robust burden of “clear and convincing evidence” to ground a complaint, away from the civil standard of “a preponderance of evidence”. Will a woman’s testimony count as “clear and convincing evidence” or will independent corroboration be the only way in which due process can be assured?

The myth that women habitually lie about sexual assault has a long juridical and popular history. The requirement in sexual offences trials in the UK that a judge issue a warning to the jury that a woman’s evidence alone, in the absence of independent corroboration, must be treated with caution was abolished only in 1994. Research into jury decision-making in cases of rape consistently shows that jurors remain sceptical of women’s evidence of sexual violation.

A cursory look at the existing treatment of complaints of sexual harassment and abuse by university administrations and criminal justice actors reveals a system that clearly does not “benefit everyone”. In the UK, research by the National Union of Students in 2014 revealed that one in four students reported having experienced “unwelcome sexual advances”.  A recent report by the National Union of Students in Australia revealed that only 9 per cent of those students who experienced harassment or abuse had complained to their university. Those who didn’t make a complaint reported being deterred by a lack of clear policies on the issue, and a systemic approach by institutions to “sweep allegations under the carpet”.

The implicit assumption underpinning Mott’s analysis is the one long discredited by feminist scholars and others: that the law is a neutral and inanimate force applied equally to all without fear or favour. This is supplemented by a suspicion that student concerns, and primarily those of female students, about sexual harassment and abuse are overstated and hysterical.

The timing of the article could not be more fortuitous, coinciding as it did with the emergence of multiple allegations of sexual harassment against Harvey Weinstein, the renowned Hollywood producer of such award-winning films as Gangs of New York, Pulp Fiction and Shakespeare in Love. The media discourse around these revelations has been characterised by astonishment at the scope of the alleged offending, and at the failure of those who allege it to have come forward sooner. Weinstein has “unequivocally denied” any allegations of non-consensual sex.

The case of Jimmy Savile (and others) in the UK, meanwhile, illustrates how existing structures of domination can coalesce to protect sexual predators and to silence and erase their victims. These structures of domination exist and flourish inside universities. As leading race and cultural theorist Sara Ahmed notes in her research into racism and sexism and the politics of complaint, when a complaint is made within the university, a network comes to life to protect those who are networked.

Those who complain about sexual harassment are often, in turn, harassed by the institution in the service of damage limitation. Scepticism of the very existence of rape culture on campus reinforces Ahmed’s point that a complainant of sexual abuse is seen primarily not as a victim but as a “wench in the works”, to put it in Sarah Franklin’s terms.

Universities must take seriously the scourge of rape culture on their campuses; they have a responsibility to their students and staff to provide clear and robust policies for the swift and thorough treatment of allegations of abuse. These policies must be grounded in the lived realities of those subjected to them, which include structural conditions of inequality, including racism and sexism, which mobilise to protect sexual predators.

To the extent to which DeVos’ proposed reforms to Title IX rules in cases of campus sexual assault retain the status quo in which universities continue to minimise their own roles in supporting rape culture, they will continue to benefit, but not in the way Mott thinks. 

Yvette Russell is a lecturer in law at the University of Bristol.