Universities across the country, including Loyola, could soon see changes to the way they handle sexual misconduct allegations, according to a recent report by The New York Times.
The proposed rules were obtained by The Times, but could not be independently verified by The Phoenix.
If implemented, the policies could bring greater rights to the accused, present a new definition of sexual harassment and lessen a university’s liability in investigating certain circumstances of sexual misconduct, The Times reported. The policies could also be legally binding, a departure from similar guidelines proposed under the Obama administration.
Like many universities across the country, Loyola has seen its share of sexual misconduct allegations involving students.
Last school year, the Office of the Dean of Students was notified of 346 unique situations where a student approached a non-confidential university employee about gender-based misconduct, dating or domestic violence and stalking, Tim Love, Loyola’s interim Title IX deputy coordinator, said in an email to The Phoenix.
This number includes incidents off-campus, including in different states or countries, as well as incidents that occured in a student’s past.
Campus Safety received four reports of rape, ten reports of fondling, and zero of incest and statutory rape in 2016, according to numbers listed in a comparison feature with other universities provided by the U.S. Department of Education in compliance with the Clery Act. In addition to these criminal offenses, Campus Safety received 6 reports of domestic violence, 17 stalking reports and zero of dating violence.
As a school that receives federal funding, Loyola would be subject to these new regulations if they become policy, according to Love. Love explained Loyola receives federal funding primarily through student loans and grants, such as Pell Grants, which support low income students.
However, if officially released, Love said the impact of the policies on Loyola will be up to their specific wording.
If the rules take a deregulatory approach aimed to give schools more flexibility in their policies, Loyola could be able to maintain parts of its current standards, according to Love. But if the policies place more rigid regulations on universities, Loyola might need to make changes.
“If the regulations come forward and mandate that we must do something a certain way, then we will have no choice but to either comply or to engage in the legislative process,” Love said.
Following the Trump administration’s repeal of Obama-era guidelines last September, Love said Loyola’s policies remained unchanged under the interim guidelines set as a replacement.
Unlike the Obama administration’s letter, which provided guidance to help shape university policy but left the details up to specific schools, the Trump administration’s reported new rules could impose specific legal regulations on universities, The Times reported.
If implemented, they’ll seek to limit a school’s liability only to incidents reported to have occured on campus or in university programs, The Times reported. This means if a student reports an incident of sexual misconduct in an off-campus student apartment, the university is not legally required to investigate it.
Mira Krivoshey, assistant director of health promotion in Loyola’s wellness center, said she sees this particular rule as one of the most “damaging.”
“What we understand about sexual misconduct is that most of it doesn’t happen on campus,” Krivoshey, a certified sexual assault advocate, said. “It happens at off campus parties and off campus apartments or on public transport.”
While Krivoshey said Loyola will continue to offer support for students regardless of potential policy changes, she said she’s unsure if the university will still be able to hold perpetrators accountable for violating Loyola’s community standards off campus.
“Imagine a situation in which a student is sexually assaulted at an off-campus apartment by another Loyola student, but because it happened off campus, they still have to go to class with their assaulter, or their perpetrator, or their abuser,” Krivoshey said. “That is a huge red flag among these rules and something that could really damage students’ ability to participate in their education here at Loyola.”
However, because the rules have not been officially implemented, many of their implications are unclear.
The rules could reportedly provide additional deregulation, saying a university is only legally responsible for investigating incidents filed through “proper authorities” — described in The Times article as “an official who has the authority to institute corrective measures.” This means a report from a figure like a “residential adviser in a dormitory” wouldn’t be valid, the report said.
The rules could also promote the use of mediation — moderated communication between the victim and accused through a third party, according to the Times report.
The 2011 Obama administration letter deemed the use of mediation “inappropriate” in resolving sexual assault cases.
According to Love, mediation isn’t used in cases of sexual misconduct at Loyola.
“[With mediation] that is the university saying, ‘we will help you have a conversation and then whatever happens in that conversation, whatever information comes out, we won’t take any action on it,’” Love said.
Krivoshey said she thinks mediation is ineffective in addressing instances of sexual misconduct.
“When someone has been sexually assaulted or when they are in an abusive relationship, they don’t have the same power as the person who is doing the abusive conduct,” Krivoshey said, “So putting them up into mediation sets them up in this dynamic already when one person has control over the other person.”
According to Krivoshey, mediation can also be traumatizing for the victim.
“When one person has been violated by another person there’s trauma involved … and so to be questioned, sometimes to even be in the same room as someone who has violated you in that way is incredibly traumatizing and is not going to come to an outcome that satisfies anyone,” Krivoshey said.
The reported changes could also give universities the freedom to choose the level of evidence in a case and whether they’ll have an appeals process, according to The Times. Universities would be able to select between the “preponderance of evidence” standard or the “clear and convincing” standard, The Times said.
The less stringent preponderance of evidence standard, used in civil cases, requires that more than 50 percent of the given evidence leans toward one side of a case, while the higher standard of clear and convincing evidence must be “highly and substantially more likely to be true than untrue,” according to Cornell University’s Wex Legal Dictionary.
According to Love, the preponderance of evidence is the lower standard most often used in civil cases and the standard used by Loyola in cases of sexual misconduct.
“What [preponderance of evidence] essentially says is if you start out with a position of impartiality and you investigate and it turns out … that the evidence, even ever so slightly favors one side over the other, then you should find in the favor of the side that has more evidence,” Love said.
Krivoshey said if schools change their standard to the clear and convincing standard, it would make it more difficult to find students responsible.
“Oftentimes there isn’t a lot of physical evidence as to what occurred when a sexual assault takes place … holding these cases to a higher level of evidence essentially makes it harder to find someone responsible for sexual misconduct,” Krivoshey said.
Along with deregulation, DeVos’ policies promote a new definition of sexual harassment which, unlike that of the Obama administration, only acknowledges one type of sexual harassment.
The Times cites the definition as “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.”
While Krivoshey said this definition recognizes one type of sexual harassment, characterized as “hostile environment,” it eliminates the “quid pro quo” definition of sexual harassment.
Krivoshey described “quid pro quo” with the example of someone promising a student better grades or an invite to a party if the student agrees to go on a date with them.
“Only limiting the sexual harassment definition to this one of a hostile environment, it discounts all these other types of sexual harassment,” Krivoshey said. “It essentially invalidates people who experience that type of sexual harassment.”
In the 2011 letter, sexual harassment was defined as an “unwelcome conduct of a sexual nature“ including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature,” The Times quoted.
To determine if schools have properly addressed issues of sexual harassment, they’ll be subject to a new standard which The Times calls “deliberately indifferent,” meaning an institution will be at fault, “only if its response to the sexual harassment is clearly unreasonable in light of known circumstances.”
The federal government won’t discipline schools who offer supportive measures as an alternative to legal action. These measures include counseling, campus escort services and changes in housing, according to The Times.
The U.S. Department of Education didn’t respond to a request for comment from The Phoenix.