Massachusetts Daily Collegian

No retribution for sexual assault after federal overhaul

Analyzing the new standards

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No retribution for sexual assault after federal overhaul

(Collegian File Photo)

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(Collegian File Photo)

By Joshua Raposa, Collegian Columnist

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I would presume that it is not controversial to say that “objectivity” as it concerns human affairs is an unattainable standard; to speak is to immediately give one’s own opinion and, as a result, to relegate one’s ideas to the realm of the “subjective.”

While this phenomenon is certainly the case for everyday life, scholarship and media also exhibit the same quality of subjectivity. The only difference between the two aforementioned are the types of language that they use. In the media, often this subjectivity is seen through layout and pagination; article visuals correspond with importance – the bigger the article, the more important it has been deemed. However, because we live in an Orwellian world, importance and size are actually in inverse proportion to each other. In other words, it could be argued that the information that is most relevant to society actually receives the least media attention.

Accordingly, it is of no surprise that the most important development in the last 20 years regarding sexual assault policy on universities and its corresponding federal overhaul was compartmentalized to a small section of the New York Times on Aug. 30. This article was virtually undetectable next to the most recent, most massive and thereby most useless update regarding “the Russian Investigation” (in this case, “Trump fires lawyer with tweet”).

The Department of Education is planning a federal overhaul of the Obama-era sexual assault definition, guidelines and relevant laws. The new stipulations will “have the force of law” and “can go into force without an act of Congress, after a public comment period.” Several aspects of this new overhaul are notable and are worth looking closely at:

First, the new definition of sexual assault effectively eradicates the ability to pursue most sexual assault and rape cases. The definition has been narrowly constituted to legally allow virtually all sexual misconduct. Sexual harassment will now be stringently “reserved for repeated complaints or the most egregious allegations. The new rules would define 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.’”

The DOE has apparently adopted the “20 minutes of action” Brock Turner-esque standard of sexual assault; that is to say that unwanted penetration or sexual activity in any form does not constitute a “rape” because it is not “severe” or “pervasive” enough. Unless your “rape” was so brutal as to hospitalize or kill you – to deny you access to the school’s education program – it likely didn’t happen or is not important. This is the new definition.

Second, the new laws stipulate that universities now have the opportunity to “choose the evidentiary standard” in sexual assault cases. Universities will be able to decide between the “preponderance of evidence” standard – which is the one currently in place – or the “clear and convincing” standard. The “preponderance of evidence standard” is the standard currently used in all civil cases and is supposed to encourage survivors of sexual assault to pursue claims against their aggressors.

According to the 2011 DOE, the “courts have consistently declared student disciplinary proceedings to be civil and not criminal proceedings and, therefore, do not necessarily require all of the judicial safeguards and rights accorded to criminal proceedings.” The decision to allow the evidentiary standard to be chosen instead of the preponderance of evidence standard grants a “safeguard” to perpetrators of sexual assault, allowing them to roam campus without fear of retribution and leaving the survivor bereft of legal means. This is the new standard.

Third, and finally, universities will now be granted a new breath of fresh air in a proposed liability statute.  According to the new proposals, universities will not be held responsible for sexual harassment that takes place “off-campus.” The New York Times reports, “schools [will be] responsible only for investigating episodes reported to have taken place within their own programs, or on their campuses, not, for instance, in off-campus parties.” In other words, rape that occurs off-campus is not rape at all in the eyes of the university. The incredulity – I believe – speaks for itself and needn’t require further elaboration. These are the new statutes.

The University of Massachusetts is a public university and under the “force of law” will be mandated to comply with this federal overhaul. To put it bluntly, these highly misogynistic, belligerent and outright cruel policies will be implemented on our campus. The University has a choice: uphold the “dignity and respect” of the most vulnerable members of its community by rejecting these new mandates or acquiesce to the privilege and power of the Department of Education.

Lest the University is interested in flaying its own self-proclaimed moral superiority, it ought to resolve to the former.

Joshua Raposa is a Collegian columnist and can be reached at [email protected]

2 Comments

2 Responses to “No retribution for sexual assault after federal overhaul”

  1. NITZAKHON on September 26th, 2018 11:30 am

    Utter fearmongering to keep women on the Democrat plantation.

  2. amy on September 26th, 2018 5:46 pm

    Courts actually have recently declared that the universities consistently violate the constitution in their title ix hearings particularly due process; actually the lower standard of evidence that is used in these hearings was banned in a recent case, J..Lee vs the University of New Mexico.

    It’s funny how liberals are all about ‘justice’ but in fact go out of their way to make kangaroo courts and ensure that defendants don’t get justice. The author even admits he is not interested in justice but revenge, as he states in his title, no retribution.

    “highly misogynistic, belligerent and outright cruel policies” I love the smear lol; it’s so hyperbolic. Liberals until recently and I think this is going to turn around, have very effectively used hyperbole and smear to make people think the worst about everything.

    Umass can decide not to follow the law but there will be consequences. Umass isn’t an independent college; it depends on federal revenue, likely tens to hundreds of millions of dollars and could stand to have this limited and also the college is subject to court rulings, doe guidelines and the constitutions.

    I know that some of the wacky liberals here and who run this college like to think they can do whatever they want but they can’t and until Umass decides to start it’s own country; it should follow the rules and get along. Enough people’s lives have been ruined by kangaroo courts and it will be sad to see the university rebel against higher standards in the justice system to prevent that and ensure justice.

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