Campuses Fight Sexual Violence
An estimated one in every 10 undergraduate or graduate students experience rape or sexual assault through physical force, violence, or incapacitation. That is a sobering statistic and one the state of Pennsylvania is working to reduce. In January 2020, the Pennsylvania Education Department began distributing $1 million in grants among 36 different colleges and universities across the state to staff and to provide services for victims of campus rape and sexual assault.
While one in 10 students overall will potentially be raped or sexually assaulted at college, the number increases significantly when you look primarily at undergraduates. Among undergraduate students, 23.1 percent of women and 5.4 percent of men are sexually victimized on campus. What is even more concerning about these crimes is that victims are not always willing to report them. Only 20 percent of female student victims between the ages of 18 to 24 report sexual crimes to law enforcement, leaving perpetrators free to victimize others. Only one out of every six college-aged sexual assault survivors accepts help from a victim services agency.
Higher Education Programs to Help Assault Survivors
In June 2019, Pennsylvania Governor Wolf signed Act 16 into law, which requires colleges and universities to beef up their services for students who are sexually assaulted. Institutions of higher learning must meet two categories of requirements. First, every school must have an online system for students and employees to report complaints of sexual harassment and assault. An effective notification system discloses who is receiving assault complaints, how this information will be used, and where victims can go for help on campus.
Next, colleges and universities must have a clear sexual harassment and assault policy that addresses:
- The definition of consent and the concept of incapacitation
- Who the institution considers responsible employees that have the authority and the power to report sexual harassment
- A distinction between a complaint of sexual misconduct and a report, and the procedures for handling each
- The rights of both parties, including the respondent who should be notified of the alleged misconduct
- A standard of proof by which it is determined if misconduct occurred
These new guidelines for Pennsylvania colleges and universities combined with the upwards of $1 million in grants will hopefully make significant progress in reducing the number of assaults among college-aged students, while also eliminating the stigma of reporting them.
In Pennsylvania, colleges and universities have the tools to help prevent sexual assault, raise awareness of the problem among students and staff, and encourage victims to report sexual violence. However, some victims may still feel more could have been done to prevent an assault. At MacMain, Connell & Leinhauser, our attorneys represent Pennsylvania’s institutions of higher learning battling serious claims that may damage their reputation and status in the community. To learn more about our services, call 484-318-7106 or use the online form for an initial consultation. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County.
Recent Title IX Proposals from Education Department
Title IX was enacted in 1972 to ban discrimination based on sex in those schools receiving Federal financial assistance (20 U.S.C. 1681(a)). For a party to prevail in a Title IX case, the school must have actual knowledge of the discrimination and be deliberately indifferent to it.
In addition, the harassment must be so severe and pervasive that it effectively denies the aggrieved student(s) access to an education.
Addressing Sexual Harassment in Schools
A relatively recent application of Title IX has been to address gender-based discrimination in schools, including sexual harassment and assault, harassment based on gender identity, and harassment based on non-conformance with stereotypical gender norms.
Victims are often intimidated into silence. They may do poorly in school or even drop out if the stress of maintaining that silence is too great.
Part of that intimidation arises from the investigative process. Victims weigh the pain of remaining silent against the prospect of having to prove the incident and face their attacker; they often choose silence.
There are statistical signs that failing to address sexual violence, including harassment, hurts school performance. On the other hand, when efforts are made to prevent and punish violations, measures of performance show improved individual and school-wide academic outcomes.
The Obama Administration Approach
The Obama administration sought to create a process more supportive of victims. A 2011 “Dear Colleagues Letter” sent to school administrations nationwide urged them to better investigate reports of sexual violence. The guidance specifically directed schools to evaluate cases using the “preponderance of the evidence” standard of proof, which is used to determine other civil rights violations, including discrimination. This is a lesser standard than the “beyond a reasonable doubt” standard used in criminal proceedings.
Advocates for victims approved of the change and believed they would help more victims of sexual violence come forward. Scholars were more equivocal, with some arguing the letter represented administrative overreaching, and others raising concerns that the accused were being unfairly disadvantaged.
Some school administrators complained the procedures were too complex and burdensome.
The Trump Administration Approach
Education Secretary DeVos has recently rescinded the guidance letter and proposed new rules to replace it. The rules would essentially eliminate prior Obama administration efforts to support victims.
- Redefine sexual harassment that schools have to investigate from unwelcome conduct of a sexual nature to unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive, that it effectively denies a person equal access to the recipient’s education program or activity.
- Changing the standard of proof so that schools would no longer be required to use the lesser standard. Schools would be given the option to require evidence of guilt beyond a reasonable doubt in order to find in favor of the accuser.
- Changing the investigative proceeding from one that discouraged schools from directly cross-examining the accuser, to one that requires schools to allow direct cross-examination.
- Changing the investigation from a formal one to allowing mediation and other informal procedures to address reports of sexual harassment.
Education law lawyers at The MacMain, Connell & Leinhauser provide skilled representation to public and private entities regarding Title IX compliance. We offer legal advice, along with practical guidance on preparing compliant policies and training programs. Contact us at 484-318-7106 or complete our online form for more information. Our West Chester, Pennsylvania office serves clients in the greater Philadelphia area.