By Anna Walters The Wisconsin State Journal
WWR Article Summary (tl;dr) New Title IX rules went into effect on Friday. Among the provisions is one which gives the accused more protections from accusations of sexual assault.
UW-Madison students and employees face a sweeping new process to report sexual misconduct on campus under rules that narrow the definition of harassment and bolster protections for the accused.
The changes to Title IX, the federal law that protects people from discrimination based on sex in education, are set to take effect just weeks before the fall semester begins and will transform the university's role to more closely resemble a courtroom with a requirement that both the accuser and accused be cross-examined.
Students assaulted off campus can no longer file a Title IX complaint under the new rules, creating a gap at institutions like UW-Madison where roughly 75% of the student body lives in off-campus housing.
Sexual assault survivor advocates, including Dana Pellebon of Dane County's Rape Crisis Center, said the rules will deter victims from coming forward to report sexual violence.
"Our problem with the new changes is that it decimates the system," she said. "And the system was shaky to begin with."
The new rules, which were pushed by the Trump administration, took effect Friday despite many lawsuits challenging their legality. The looming presidential election could also affect how long the rules last.
Previous policy statements from the Department of Education had served as guidance, but the new rules are legally enforceable and will therefore be a "game-changer," said Kenneth L. Marcus, the department's assistant secretary for civil rights, in an announcement this spring when the rules were released. "It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct."
Data show that sexual violence on college campuses is still widespread. At UW-Madison, 26% of women and 7% of men reported they had some form of unwanted sexual contact during their time at the university, a figure that is unchanged in the last four years despite university efforts to address the problem. Few students report sexual violence under Title IX.
Definition changes One point of contention in the new rules is a more narrow definition of sexual harassment that now includes any unwelcome conduct "so severe, pervasive and objectively offensive that it effectively denies a person equal access."
That is a higher standard than previously required, so it is likely that fewer cases will meet that bar for response under federal Title IX policy, according to Lauren Hasselbacher, UW-Madison's Title IX coordinator.
The definition of sexual harassment also now includes instances of "sexual assault, dating violence, domestic violence or stalking" -- cases the university was already required to respond to under the federal Violence Against Women Act.
The "mincing" of the definition of sexual harassment may make it harder for victims to come forward, Pellebon said.
"Anything that opens the door for additional traumatization is problematic when building a system to protect victims of sexual violence," she said.
The new revisions also give schools the authority to use the "clear and convincing evidence" standard rather than the less rigorous "preponderance of the evidence" standard, which considers whether it is more likely than not that a student violated campus rules. However, Hasselbacher said UW -- Madison will continue to use the "preponderance of the evidence" standard for sexual misconduct allegations.
Cross-examinations Under the new rules, colleges also must provide a live cross-examination, making campus hearings more like a courtroom.
Previously, UW-Madison relied on trained, impartial Title IX investigators to gather evidence and provide an investigatory report to a hearing committee. Unless parties and witnesses agreed to testify or be questioned at a hearing, the hearing committee used the investigative report to make decisions, Hasselbacher said.
The new rules will no longer allow the hearing committee to consider information in the investigatory report if there was not a cross-examination.
The university declined to provide the number of Title IX complaints received and number of cross-examinations held over the past five years, referring the Wisconsin State Journal to submit a public records request, which the newspaper submitted July 31.
Formal complaint procedures at the university already provided an impartial investigation, Hasselbacher said. "We will continue to resolve formal complaints through a fair process that protects the rights of all parties."
Hasselbacher said it is likely that many, if not all, hearings during fall semester will be conducted remotely because of COVID-19.
Universities are also required to provide parties an adviser at no cost if they don't have one to conduct cross-examination on their behalf at any hearing. UW-Madison is still evaluating how to carry out the requirement and will continue to refer parties to community legal resources should they wish to hire a private attorney, Hasselbacher said.
Support offered The addition of required cross-examinations adds to the stress of victims participating in the conduct process, said Marlena Holden, a University Health Services spokeswoman.
UHS will continue to provide all resources to all survivors, regardless of whether they file a formal complaint.
"We are prepared to offer support to survivors but expect that some may choose not to pursue a conduct complaint because of this requirement," Holden said.
Pellebon agreed the cross-examination requirement could make coming forward more difficult.
"Let's be honest: If there is someone that has caused you physical or emotional harm, to then be subject to them gaslighting, changing the conversation or entering things that may not be admissible -- because even if they're not admissible, these things still may come out of their mouth," Pellebon said. "I don't know how anyone can look at this and say this is victim-centered on any level."
Also new is a requirement for universities to dismiss Title IX complaints that occur off campus or against a person outside the United States -- for example, in off-campus housing or in study abroad programs. The change puts a burden on the university because most of the Title IX cases reported at UW-Madison occurred off campus, UW-Madison Chancellor Rebecca Blank said at a July UW Board of Regents meeting.
UW-Madison's Title IX office will continue to provide supportive and protective measures, such as no-contact directives, regardless of where incidents occur and regardless of whether the complainant pursues a formal investigation, Hasselbacher said. The university is developing reporting procedures for off-campus incidents.
The university also can still respond to off-campus misconduct cases involving students using other provisions of the campus code of conduct, according to UW officials.
Resources remain While UW is working to implement the changes, what they will look like for victims remains unclear, especially for those who want to report an incident that may fall short of new Title IX requirements.
UHS Survivor Services is a good place to start for support, Holden said. "We can help survivors understand their options and make the choices that are right for them," Holden said. "We can provide mental health support, and we can help them access other types of support, such as housing and academic accommodations."
Many of the students who use Survivor Services choose not to make a formal complaint or report to police, but for those who do, Survivor Services can help the process, including being present at hearings, Holden said.
In addition, UHS offers confidential medical services for students affected by sexual assault and dating violence like treatment of injuries, emergency contraception, pregnancy testing, HIV testing and counseling and treatment of other sexually transmitted infections.
The Rape Crisis Center and Domestic Abuse Intervention Services also offer advocacy services to survivors and can help them plan next steps. "What's most important is what the survivor wants and how the survivor wants to proceed, and what that feels and looks like for them," Pellebon said.