No Changes to 5C Sexual Assault Policy, Despite DOE Action

5C policies against sexual assault will not change despite the Department of Education's recent decision to scrap Obama-era Title IX policies, campus Title IX coordinators promised.

Secretary of Education Betsy DeVos announced Sept. 22 that the DOE was rescinding the 2011 Dear Colleague Letter and 2014 Q&As that demanded colleges use a “preponderance of evidence” burden of proof for sexual misconduct cases. Colleges may now use the “clear and convincing” standard – a higher burden of proof.

“Preponderance of evidence” is the lowest burden of proof, meaning a perpetrator is found guilty if it is more likely than not that they performed a sexual act without the other’s consent. The “clear and convincing” burden of proof requires the case of sexual misconduct to be highly probable in order to convict a perpetrator.

“The withdrawn documents ignored notice and comment requirements, created a system that lacked basic elements of due process, and failed to ensure fundamental fairness,” the DOE's statement read, citing DeVos. “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

The 5Cs must comply with California state legislation requiring all institutions of higher education to use the “preponderance of evidence” burden of proof for cases of sexual misconduct, Pomona College Dean of Students Miriam Feldblum and Scripps Title IX coordinator Sally Steffen wrote in an email to TSL.

Title IX coordinators said current Title IX policies are fair to both survivors and perpetrators.

“The College will continue to provide a fair and impartial process for investigating and resolving reports of sexual assault and other forms of sexual misconduct in line with Title IX,” Pitzer College Title IX coordinator Corinne Vorenkamp wrote in an email to TSL.

Harvey Mudd College Title IX Coordinator Deborah Kahn added in an email that “during the past six years, there has been significant work on campuses across the country in developing fair and equitable process to resolve Title IX cases.”

Claremont McKenna College's Title IX coordinator could not be reached by press time.  

Steffen said rape remains a vastly underreported crime.

“We also know that there are many barriers to coming forward to disclose this form of violence in the first place and, even when a disclosure has been made, to moving forward with a college disciplinary process or a report to police,” Steffen wrote.

She said survivors don’t report violations because there are often no eyewitnesses and they fear not being belived.

“My experience as Scripps Title IX Coordinator tells me that if colleges and universities switch to a clear and convincing standard, this will further deter survivors from coming forward to college officials or law enforcement,” Steffen wrote.

Vorenkamp said the DOE's changes would not influence the 5Cs' work to support survivors.

“The DOE's issuance of new interim guidance does not alter the important work taking place at Pitzer, at the Claremont Colleges’ EmPOWER Center, and across the Claremont Consortium, to create a safe and equitable environment where survivors of sexual assault and other forms of sexual misconduct can come forward to report and receive support and assistance,” she wrote.

Feldblum concurred.

“The [Department of Education's] action today will in no way interfere with the important work taking place on campus, including with the Pomona Advocates, and at the Claremont Colleges’ EmPOWER Center, to encourage survivors of sexual assault to come forward and report,” Feldblum wrote.

Kay Calloway PO '18, head coordinator of the Women’s Union at Pomona and a member of Pomona's Advocates for Survivors of Sexual Assault, said raising the burden of proof in sexual misconduct cases is “ridiculous.”

“[The burden of proof] has to be so low because it is hard to gather proof of consent or lack thereof,” she said. “You cannot demand the same sort of evidence as for other criminal cases.”

Calloway said the DOE's changes prove the government cares more about perpetrators than survivors.

“Rape culture already means that perpetrators and accused perpetrators get a certain amount of care,” she said. “They are already considered innocent until proven guilty and it is dishonest for DeVos to deny that.”

Calloway also criticized Pomona’s policies against sexual violence.

The “focus has been on supporting survivors who have already been assaulted and are forced to live with their perpetrators on campus,” she said. “That is a hostile learning environment to walk around campus and have to see the person who assaulted you.” 

She criticized Feldblum’s email to the Pomona community for not explicitly mentioning sexual assault or sexual violence.

“The school doesn’t like to talk about sexual violence, as if it doesn’t happen,” Calloway said.

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