PHILADELPHIA — When Brett Kavanaugh became the latest victim of the unhinged #MeToo movement, the nation got a look at what happens when someone is accused of a crime, denies the charges and is not believed. Being a respected jurist on the brink of a Supreme Court confirmation did not spare him from an onslaught of defamatory claims and subversive suggestions. Kavanaugh’s treatment highlighted what the #MeToo movement, designed to empower women, had truly become — a witch hunt without due process.
Betsy DeVos figured it out before the rest of us.
Earlier this year, the secretary of education announced plans to modify the rules governing sexual assault on campus to balance the rights of both victims and those accused of committing assault. The final proposal was presented recently — and there was plenty of backlash.
“I am dismayed with the Trump administration’s cruel proposal that will have the effect of putting power in the hands of abusers and dissuading survivors from coming forward,” John B. King Jr., who was education secretary in the Obama administration, said on Twitter.
Others suggested that the new rules would make it much less likely that victims would seek help. Former Vice President Joe Biden, someone who has long been a champion of victims of violence and who spearheaded the Violence Against Women Act, said “(the) proposed rollback would return us to the days when schools swept rape and assault under the rug and survivors were shamed into silence.”
As someone who spends a good part of her days helping victims of abuse in the immigration context, I thank Biden for his admirable advocacy. I also agree with DeVos that “every survivor of sexual violence must be taken seriously.”
But after seeing what happened to a Supreme Court nominee with access to the best lawyers and resources, I am thrilled that the Trump administration decided that all college students are also entitled to protection. If accusations could nearly take down a man as respected as Kavanaugh, what happens to someone who doesn’t have that level of clout and legal prowess? Due process exists because not every person accused of a crime has actually committed it.
Or, as DeVos said, “Every student accused of sexual misconduct must know that guilt is not predetermined.” The changes to the Obama-era rules create a balance for both victims and the accused.
First, they revise the definition of sexual harassment. Before, harassment was defined as “unwelcome conduct of a sexual nature.” That was so overly broad that a wolf whistle and sustained ogling would qualify as harassment. Now, the conduct has to be “so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.”
I’m glad they used the phrase “objectively offensive” because #MeToo has raised the sensitivities of some women into legal causes of action. As the great Camille Paglia noted 20 years before women started marching in their pink hats: “A male student makes a vulgar remark about your breasts? Don’t slink off to whimper and simper with the campus shrinking violets. Deal with it. On the spot. Say, ‘Shut up you jerk! And crawl back to the barnyard where you belong.’”
Second, colleges are no longer required to use the relatively lax “preponderance of the evidence” standard of proof and can now require that an accuser prove a case with “clear and convincing evidence.”
Third, colleges are now obligated to investigate incidents that occurred only on campus or at sanctioned events.
The fourth and most important change is that the accused now has the right to confront his accuser through cross-examination. While he (or, in the rare case, she) does not have the right to directly confront the person making the claims, a lawyer can be hired to represent the accused.
The right to confront your accuser is the single most fundamental principle of our criminal justice system. Colleges used to act like lawless Star Chambers and err too heavily on the side of helping victims while sometimes ignoring the damage done to young people too easily tarred as “rapists” without any substantive proof.
Flowers is a lawyer and columnist for the Philadelphia Daily News. She can be reached at email@example.com.