On: The VAWA and Title IX

Said The Washington Post in a recent editorial on the Violence Against Women Act (VAWA), Congress must “get off their soap boxes” and “reauthorize a law that everyone agrees must continue.” When Congress does return to sense and sensibility, it should abort the current debacle and discuss a new element of the VAWA actually worth the controversy. Herewith, a cautionary tale of how, in our haste to do better, we sometimes make matters worse.

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In addition to a deluge of summer heat, June also brings the 40^th anniversary of Title IX, an exemplary piece of legislation which ensures that “[n]o 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…”

But under the Senate’s version of the VAWA, Title IX, that pillar of equality, becomes troublesome. In dealing with the exceedingly complex problem of sexual assault on college campuses, a new interpretation of Title IX – originating from within the Obama administration and reinforced under the VAWA – seeks to take a shortcut: School’s will no longer be required to find “clear and convincing” evidence before assigning blame and punishment in matters of sexual assault, they need only discover a “preponderance” of it.

Fiat justitia ruat caelum. This reinterpretation of Title IX will unleash a host of unintended consequences, none of which are certain to protect coeds.

Mandating schools punish students based on a “preponderance” of evidence conflicts with the judicial philosophy of “innocent until proven guilty,” the idea that, until such time as judge and jury have tried a case, colleges are handling alleged victims accusing alleged assailants of alleged crimes. Yes, these institutions do have a responsibility to discipline and protect students before the courts or police become involved, but guilt should not be assessed on a likelihood, it should still be proven "beyond a reasonable doubt."

While such philosophy does make sexual assault inherently difficult to prosecute (cases often become mired in he said/she said accusations), America gains immensely from this bias.

It ensures, to a considerable degree, that those punished are, in fact, guilty and guards the Eighth Amendment’s proscription of “cruel and unusual punishment”: A student found culpable with “clear and convincing” evidence is likely to be chastised in a manner proportional to their crime because the nature of their transgression is well understood.

Worse, it isn't clear that abdicating the more stringent burden of proof will meaningfully impact women. A small minority of men are responsible for the majority of sexual assaults. When we lower the standards by which the accused can be found guilty, we not only raise the probability that the innocent will be caught in a wider net, but we lessen the certainty that we’ve punished actual criminals. Meanwhile, perpetrators would slip through ever widening holes in that net, and continue their lives uninhibited.

All this must be pondered under the harsh light of ambiguity – by and large we have yet to determine the prevalence of sexual assault on campuses. It is a fact which, if ascertained, would strongly color our opinions regarding just how far we’re willing to go to protect college women.

A December 2005 DoJ study

Take, as a fragment of evidence for a swath of contradictory findings, this December 2005 study by the U.S. Department of Justice. Having no apparent senses for irony or vagaries, it claims (on the same page, no less!) that  “one in five young women experiences rape during college” and  “half of all student victims don’t label the incident as ‘rape’.”

This seeming paradox broaches several pertinent questions: Is it justifiable to classify students as victims if they themselves don't claim victimhood? Is it the place of government to override the opinions of the women it tries to protect in the name of their “best interest”? Should government policy be based upon conflicting evidence? 

Worringly, in our justifiable urge to do something, anything to protect college women, we are attempting to solve a problem yet to be fully understood. As such, this new interpretation  is amenable to the plurality of missteps and errors which occur when policy is founded on poor information.

Congress should add the protections for Native American, immigrant and LGBT women, but leave out the reinterpretation of Title IX.

Let’s first diagnose the sickness, its causes and symptoms, before we discuss remedies.

Note from the editor: A subsequent column will suggest a better approach.