United States Secretary of Education Betsy DeVos released Title IX guidelines on sexual assault May 6. All educational institutions receiving federal funding were forced to comply with the guidelines by Aug. 14, 2020 or have their federal funding revoked.
Under the new guidelines, sexual harassment is defined as unwelcome conduct which is “severe, pervasive and objectively offensive.” Stepping away from Obama-era guidelines, which discouraged informal hearings, the new rules require colleges to have live hearings and allow informal resolution and mediation. Under the changes, institutions will no longer be held accountable for off-campus sexual assault incidents.
Although Title IX no longer requires it, the University of Wisconsin will continue to respond to off-campus incidents of sexual misconduct.
UW’s Student Title IX Committee member Gianna Gemignani-Valoe said most sexual assaults tend to occur off-campus, and there is no evidence to support restricting investigations to the campus area.
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“So it seems like it’s much less inclusive than what it should be and what the evidence would support,” Gemignani-Valoe said. “The practices in the investigation seem like they’re not rooted in any trauma-informed care principles at all.”
Gemignani-Valoe is the director of Relationship For Leaders, Advocates and Greek Students, a dating violence-prevention student organization on the UW campus. Relationship FLAGS offers peer-facilitated workshops to college students and received the Wisconsin Idea Fellowship and the Hilldale Research Grant.
In an email statement to The Badger Herald, UW spokesperson Meredith McGlone said the new guidelines set a higher standard for what constitutes sexual harassment, so it is likely fewer cases will meet the standard for response under Title IX.
“However, UW-Madison and UW System have other policies in place that prohibit sexual harassment and other forms of sexual misconduct,” McGlone said. “We are working through how those policies will be applied given the Title IX changes.”
In addition to changing what constitutes sexual harassment, the new guidelines require universities to conduct cross-examinations. According to Gemignani-Valoe, UW or the accused is now allowed to, for example, have a university official or a third party cross-examine the victim and broadcast it in a live hearing.
The rationale, Gemignani-Valoe said, is these types of practices will afford greater due process to the accused, but evidence from trauma-informed practices shows this policy can bring about revictimization and retraumatization of the victims.
“I personally would think it would give the accused the upper hand in the situation because people already aren’t coming forward about the violence that has happened to them … you’re not going to want to come forward if you’re going to be outed like that and potentially be retraumatized in the investigation process itself,” Gemignani-Valoe said.
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Gemignani-Valoe said according to the preliminary results of the Association of American Universities Campus Climate Survey 2019, a lot of students on campus don’t feel like their investigations — even with the previous Title IX regulations — would be taken very seriously by the university. The results show 87% of all sexual assaults go unreported.
McGlone said the university hearing committee can no longer consider information from parties and witnesses if the party or witness was not cross-examined at a hearing. According to McGlone, this requirement adds to the stress of participating in the conduct process.
McGlone added UW is prepared to offer support to survivors but expects some may choose not to pursue a formal complaint because of this requirement.
Director of Media Relations Mark Pitsch said the UW System is writing new rules and policies to comply with the Title IX changes.
“Our revised scope statement for the rules has received Gov. Evers’ approval,” Pitsch said. “During this process, our universities remain committed to providing services and support to sexual assault survivors.”
Along with 17 other states, Wisconsin is suing to block the new Title IX changes. Gov. Evers blocked the UW System from complying with the new policies in June but later approved the changes after receiving revised scope statements from the UW System. The Board of Regents approved the new regulations as emergency rules for the UW System in a July 20 meeting without public feedback.
According to Director of Compliance Katie Ignatowski, emergency rules have a limited effective window of 150 days, which means the rules will expire Jan. 11, 2021. From then, the latest possible date the emergency rule can remain in effect will be May 11, 2021. While the emergency rule is in effect, the UW System will draft a permanent rule.
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“We’ll have a three to four week public hearing period on the permanent rule in October and November of this year,” Ignatowski said in a Board of Regents meeting July 6. “By that point, we should have a few months under our belt with the emergency rule and we should also have a draft of the permanent rule to circulate for comments in the campus communities and the public.”
According to the AAU survey, about 26.1% of undergraduate women and 6.8% of undergraduate men have experienced sexual assault since entering UW. McGlone said UW is still committed to providing the full range of supportive measures, regardless of whether survivors choose to pursue a formal complaint. Supportive measures include counseling, academic and housing accommodations, and protective measures such as no-contact directives.
According to Gemignani-Valoe, however, many campus resources — such as Survivor Services and the Meriter’s Forensic Nurse Examiner Program — are underutilized. Valoe said ensuring due process of both the accused and the victim should not be at the victim’s expense.
“The question I would want to ask the DeVos administration is, ‘okay, if you’re looking at improving the due process, why are you putting in policies that directly go against a lot of good public health practices?’” Gemignani-Valoe said. “If you give an abuser the upper hand that just revictimizes victims and amplifies existing issues that are already on campuses.”