Potential changes to sexual misconduct reporting, investigations facing college campuses

The changes would increase the rights of the accused and reduce schools’ liability. Here’s how this could affect FAU.


The Department of Education proposed changes to Title IX, the law that governs discrimination in public universities. Illustration courtesy of Candice Puentes

Cameren Boatner, News Editor

Editor’s note: Margaret Mifsud has previously written for the University Press.


Correction: This article has been updated to reflect that courts of law use beyond a reasonable doubt as an evidentiary standard.


FAU student Margaret Mifsud said she was raped on campus in 2016. During the assault, she said she felt paralyzed.


Afterward, she didn’t know what she should do.


She’d heard from friends that reporting sexual assault was particularly difficult for the victim. The investigators would ask invasive questions, and they wouldn’t be on her side, her friends said. On top of this, she didn’t understand how to even start the process of reporting it to FAU.


In the end, she decided not to report the assault. Two years later, she says she regrets it.


“I thought it would become this big stresser on my life, and I wouldn’t be able to focus on anything else. Even if it wasn’t severe, people need to learn that they can’t just do whatever they want to someone’s body,” she said. “I didn’t report, but I do wonder what would’ve happened if I did. I don’t think there would’ve been much disciplinary action.”


And it’s possible students like Mifsud may see a change in how disciplinary action involving sexual assault, harassment, and rape are handled.


Accusing someone of sexual misconduct may get more difficult, and those accused of sexual misconduct could be given more rights.


These changes to the federal civil rights law Title IX (see sidebar) have been proposed by the Department of Education and would affect FAU. They would reduce public universities’ liability, allow schools to decide the level of evidence needed to discipline the accused, and tighten the definition of sexual harassment, according to the New York Times. Although, the government hasn’t said when these changes will take effect.


We don’t know exactly how the proposed changes would work at FAU yet, but here’s how it works now — and what might change.


How are complaints handled under Title IX now?


Step One

The university recommends complaints of “prohibited sexual conduct” be made to the Office of Equity Inclusion and Compliance (EIC), which ensures Title IX regulations and other discrimination laws are being upheld.


The accuser can report to the Title IX compliance coordinator, who is also the executive director of the EIC office, according to an FAU policy that details Title IX regulations.


Step Two

Once the accuser informs the Title IX compliance coordinator/executive director of misconduct, they can present evidence ranging from emails, texts, photos, and videos to witness accounts.


The coordinator then decides whether an investigation into a complaint is necessary, but according to FAU’s website, the office doesn’t have one and it hasn’t for over a year.


This position, which the office hopes to hire by the end of the year, would report to the Office of Compliance and Ethics, specifically Chief Compliance Officer Elizabeth Rubin, according to FAU spokeswoman Lisa Metcalf.


But because there is no compliance coordinator/executive director, the responsibilities of that role fall to Paula Behul, the EIC director, which is different than the EIC executive director.


Step Three

After the EIC office determines the result of the investigation, the accuser and the accused both have the right to appeal.


Under current rules, FAU uses the “preponderance of evidence” standard, which means half of the evidence, “and a hair,” indicates a policy was violated, according to Frank LoMonte, lawyer and director of the Brechner Center for Freedom of Information.


In a court of law, the standard is “beyond a reasonable doubt,” meaning the judges have no doubt the defendant is guilty, or their only doubts are unreasonable.


How might this change?


The new rules would redefine sexual harassment to mean “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”


Before, it was defined more broadly as “unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature,” the New York Times stated.


FAU’s policy draws heavily from the Obama administration’s 2011 guidance on Title IX regulations.


While Secretary of Education Betsy DeVos repealed these guidelines and set temporary ones, she has now proposed new rules that would take their place.


If DeVos’ proposed rules become law, FAU will have the right to choose which standard of evidence they want to use: “preponderance of evidence,” or “clear and convincing” evidence. “Clear and convincing” means the evidence of guilt has to greatly outweigh the evidence of innocence.


Requiring a higher standard of evidence would make it more difficult for accusers to prove they were assaulted, and it would make it harder to discipline the accused.


It also would reduce the university’s liability.


“It insulates them against Title IX claimants who feel their story wasn’t heard or wasn’t believed,” LoMonte said.


FAU’s rules say mediation should never be used, another Obama-era guideline, because interacting personally after an instance of assault, rape, or harassment to “work it out” with the accused could be traumatic for the victim, according to TIME. Mediation generally means getting the two sides in a dispute to sit together with a neutral third party to reach a negotiated compromise, according to LoMonte.


But DeVos says mediation may be appropriate to reach informal resolutions.


“A lot of advocates in sexual assault cases will tell you they don’t believe in mediation, because it’s like asking a person who’s been burglarized to agree that the burglar gets to keep half the stolen property,” LoMonte said. “If there’s an actual crime, it doesn’t seem right to tell the victim to meet the offender halfway.”


But it might make sense in some cases, LoMonte added, like if the accuser is sympathetic to the accused, or if they don’t want to see them go to jail or be expelled. Then, they could reach a resolution that would provide some relief. Despite this, mediation is never supposed to be forced on people, LoMonte said.


Under current FAU rules, the accusers and the accused won’t be forced to present their statements in the same room, another Obama-era guidance. The new rules, however, would allow both sides to cross-examine one another.


The current rules at FAU allow the victim and the accused to appeal the decisions made by the EIC office, but DeVos’ rules leave it to the universities to decide whether they want an appeals process.


FAU’s current rules state that the university is responsible for misconduct that happens on or off campus, and even online, as long as it prevents the accusers’ access to education.


If passed, Devos’ changes would protect universities by holding schools responsible for sexual misconduct that happens “only on” their campuses and with their “actual knowledge,” meaning the school has to know about a case from a reliable official.


What is Title IX?

Explaining the civil rights law that governs discrimination in public universities.


Title IX is a federal law that prohibits discrimination based on sex. It has expanded in the past two decades to include sexual misconduct in education, according to the Office for Civil Rights.


“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” the law states.


Under the Department of Education, the law applies to all federally funded schools, which includes FAU.


In addition to protecting against discrimination based on sex, the law extends to sexual harassment, assault, and rape on campus. Public universities are required to prevent and stop “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”


A Partisan Issue

Here’s what different groups on campus have to say about the potential changes.


The Trump administration’s proposed guidelines are very different from the Obama era’s 2011 regulations.


And it boils down to partisan debate over the topic of sexual misconduct. Some opinions at FAU reflect dialogues happening around the country.


The Title IX regulations under Obama said universities should use the “preponderance of evidence” standard to determine whether the accused is responsible of sexual misconduct. This is the lower standard of evidence.


This and other aspects of the regulations led some to protest that this lacked due process. Holding evidence to a lower standard made it easier to convict someone of rape, and some argued that this wasn’t fair judicial treatment toward the accused.


FAU College Republicans President Steven Westervelt said this is one of the major issues with how universities handle sexual assault accusations now.


“We need due process. Due process is essential in the rights of the accused. I’ve heard of schools proposing that if you are even remotely accused of rape or sexual assault, it’s put on your record forever,” he said. “We do not need that … I feel like these proposals set a new standard of, you can question who’s accusing you and bring evidence from both sides. So, it’s very judicial.”


Tess Moody, vice president of the FAU Young Democratic Socialists of America, said allowing the universities to choose the level of evidence could restrict the rights of the victims even further. Using the higher level of evidence could be detrimental, she said.


“It’s really harmful to require that. People aren’t always in the mode where they’re ready to collect evidence at the point of being assaulted,” Moody said. “I think that these kinds of policies are just furthering the defense of people who are abusers on campus.”


Moody also noted that the laws aren’t perfect now, and she thinks the new policies would make them worse.


“College campuses tend to already let abusers off pretty easily because sexual assault numbers affect recruitment. Putting more policies like a restricted definition of sexual harassment, this adds to a culture of putting the accused over the victim and creates more of a problem than there already is.”


FAU College Democrats President Matthew Taudien disagrees with the new rules, and thinks they will create the wrong environment for sexual assault survivors.


“It will end up harming victims, and make it even harder for them to come forward,” he said.


Taudien also believes that Democrats and Republicans have to stop treating sexual assault as a political chess piece, and create bipartisan legislation to resolve the issue.