Today, AAUP Regionals Liaison Theresa Kulbaga will deliver a statement to Miami’s Senate today on changes to Title IX and implications for Miami policy. Theresa is an expert on campus sexual assault and, with Leland Spencer, co-author of Campuses of Consent: Sexual and Social Justice in Higher Education (U Mass, 2019). She is Professor in the English Department and the Languages, Literatures and Writing Department at Miami. Here is an expanded version of Theresa’s statement:
In May, the U.S Department of Education unveiled new Title IX regulations that require universities to implement a number of new policies and procedures by August 14th. The so-called “Final Rule” strengthens the rights of students accused of sexual harassment, including sexual assault, and puts more burden on victims to show, through live hearings including cross-examinations, that violence happened. It changes the definition of sexual harassment to a narrower and harder-to-prove standard of “unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access” (1).
Universities will be now be required to respond only to incidents occurring on campus or in the university’s “education program or activity” and only against a person in the U.S., so incidents during study abroad or occurring in an off-campus apartment need not be pursued. The rule allows universities to choose a stricter, more-difficult-to-prove “clear and convincing” standard of evidence to replace the current “preponderance of evidence” standard. And it “allows the institution to choose whether to have mandatory reporting for all employees, or to designate some employees to be confidential resources for college students to discuss sexual harassment without automatically triggering a report to the Title IX office” (2).
There is much in this new law that concerns me, as someone who has spent well over a decade researching sexual violence and sexual justice on campuses. As we discuss how Miami chooses to conform to the “Final Rule,” I ask that we center the needs of survivors to be believed, validated, and supported in their healing. 23.1% (nearly 1 in 4) women college students will be a victim of sexual assault (3). College women ages 18 to 24 are three times more likely than women in the general population to experience sexual violence (4). 21% of trans and gender-nonconforming students report experiencing sexual assault during their college years (5). However, most students (close to 90%) do not report (6). There are many reasons for this—and I would argue that under this new rule, the specter of having to attend a live hearing and face cross-examination will absolutely deter reporting—but part of fostering a campus supportive of survivors is allowing each survivor to choose to whom to disclose a sexual assault and what the process should look like from there.
Mandatory reporting policies, such as the one we currently have at Miami, very likely deter reporting. I am against these policies, as are most survivor advocates and antiviolence theorists who are experts in supporting survivors of violence on campus. These policies do further harm to survivors by wresting control of the disclosure process, which requires trust and knowledgeable support. They also rarely lead to justice. While it may seem logical that mandatory reporting would work against violence on campus, there is no evidence that they increase safety or decrease incidents of assault, and there is evidence that they traumatize and humiliate survivors, who ought to have a say in who knows about what happened to them.
Research shows that what makes a difference to the 11.2% of all college students who experience sexual assault (7), as well as the students who experience other forms of discrimination on campus, is a process that is supportive and respectful of their agency—whether or not they choose formally to report.
Senators, as you discuss whether and to what extent to change the current Miami policy that requires all employees to report, I urge you to put the needs of survivors first. We must retain the preponderance of evidence standard. We must decide to respond even to off-campus and study-
abroad allegations (and we may do so in any manner we choose, according to the law). Finally, we must, in the words of the law itself, “designate some employees to be confidential resources for college students to discuss sexual harassment without automatically triggering a report to the
Title IX office.” Those should include faculty, who have the most regular contact with students and are therefore among the most trusted adults on campus.
Thank you.
1 https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf, my emphasis
2 Ibid.
3 Association of American Universities, “AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct,” 2015.
4 Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “Rape and Sexual Victimization
Among College-Aged Females, 1995-2013,” 2014.
5 Association of American Universities, “AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct,” 2015.
6 National Sexual Violence Resource Center (NSVRC), “Statistics About Sexual Violence,” 2015.
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