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Title IX Is Not A Finished Product

"Misconceptions, myths, and outright lies," claims the Boston Globe regarding the rationales that underlie the proposed Title IX amendments. The question is whether the regulations, which govern university "sexual assault" hearings, need amendment, or whether they are fine just the way they are.1 We can all agree that we must find the right set of rules to eliminate campus sexual assaults; however, the current rules often create more problems than solutions. Let's discuss the "True", the "Too Far," and the "Misunderstood" of the Boston Globe piece.

The True: The author correctly points out the legal standard, "Due process calls for a standard of evidence that matches the potential penalties." This principle was laid out in the case of Matthews v. Eldridge, where the U.S. Supreme Court held that the magnitude of a deprivation of liberty must be balanced with the amount due process afforded.2 As a result, the author is correct in concluding that Title IX Hearings should not be based on a "beyond a reasonable doubt" standard. Few would argue that suspension from school, even with a "sexual assault" label, is as serious a consequence as incarceration.

The Too Far: Where the author goes too far, however, is in the suggestion that the "presumption of innocence" should not be afforded to the accused in Title IX cases. Not having a presumption of innocence is the functional equivalent of forcing the accused to "prove innocence." For the accused I ask, how? These situations often involve two parties who may or may not have known each other beforehand, who went out, became intoxicated, and woke up the next morning with vague or partial recollections of what occurred. Assuming, as is often the case in my experience, that neither party exhibited force, threat of force, of purposeful incapacitation of the other party (i.e. didn't "spike" the other's drink), then how is the accused to "prove" that he or she did not sexually assault the accuser? The presumption of innocence, a fundamental American legal principle requiring some evidence before labeling someone as having committed a "sexual assault," may be the accused's only defense.

The Misunderstood: The author claims that people "rarely lie about being the victims of sexual assault." I am not going to boldly pronounce this claim "true" or "false," but I do think that the question requires a more nuanced view. For example, when someone says, "sexual assault," what comes to mind? Do you think of a situation where neither party uses force, threat or force, or purposeful intoxication on the other party before sexual contact? In other words, do you envision what many college students call "the drunken hookup" when you hear the words "sexual assault?" Universities do. Miami University's Title IX Policy, for example, holds that a student may never consent regardless of what they say or do if the student is "substantially impaired" by alcohol.3 So a student who has sexual contact with a "substantially impaired" student has, by definition, committed at sexual assault at Miami. What if, as is often the case, both parties are substantially impaired by alcohol? Did both students sexually assault each other? Should both be suspended? How many of the "[m]ore than 1 in 10" that the author cites fall into this category?

Furthermore, how do we determine whether a claim is true or false? The process that we use shapes the truth that we seek. As most of these claims involve only two witnesses, the accused and the accuser, the process that we use to determine the truth becomes paramount. To try and create a study that determines whether previously adjudicated claims are "true" or "false," you necessarily use a different process from what the University used to yield its "true" or "false" result. How do we know if the latter process is better calibrated to reach the truth than the former? Are both processes using the same definition of "sexual assault" to judge each other's truth-seeking effectiveness?

I applaud all efforts to bring attention to these issues, and the dialogue is critical to reaching some kind of societal consensus. In the meantime, however, students are left blowing in the wind. Turning from the philosophical to the practical, I highly advise students who face these issues to consult with an experienced Title IX attorney before proceeding. These are serious cases that can have life-long impact.

1 https://www.bostonglobe.com/opinion/2019/02/21/setting-record-straight-title/sNy65jtUQ2arFP6j40CzcM/story.html?s_campaign=bostonglobe%3Asocialflow%3Atwitter

2 Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) 

3 http://miamioh.edu/policy-library/students/undergraduate/health-safety/title-ix-protocol-sexual-misconduct-policy-procedures-for-students.html#legal-consent

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