Notice & Comment

Stigma, Sexual Assault, and the Structure of Title IX Compliance

It is inevitable that the priorities of the Department of Education will change under its new chief, Betsy DeVos. The purpose of this post is to take one of the Obama-era legacies – Title IX enforcement – and suggest ways it might be improved – especially as understood from an individual health lens. While the Obama Administration’s increasing application of Title IX to campus sexual assault has facilitated increased awareness of the issue nationwide, there has in fact been relatively little analysis as to whether the structure and outcome of federal investigations has any evidence-based relationship with the perspective and mental health needs of sexual assault victims. There are now over 300 open Title IX investigations into how approximately 195 colleges and universities handle sexual assault under the law. Although each of those investigations proceeds according to the circumstances surrounding specific incidents (and the details of ongoing investigations are not generally available), publicly disclosed voluntary resolution agreements and complaint resolutions between the Department of Education’s Office of Civil Rights and 19 colleges and universities that receive federal funding provide a window into federal investigative processes and objectives.

Those resolutions suggest that the current priorities of federal investigations, driven as they are by internal agency interpretations of Title IX, are not necessarily aligned with the emotional and mental health needs of victims. The Department of Education’s Office of Civil Rights prioritizes robust sexual harassment (including sexual assault) reporting mechanisms, rapid and intrusive investigations, detailed quasi-judicial processes for notice, interim measures, sanctions, and appeals for perpetrators, and protection from retaliation for those who report. Yet the overwhelming evidence from relevant studies in the psychological and medical literature suggests not only a crucial relationship between stigma and the decision to report, but also the importance of victim empowerment in the post-assault recovery process, neither of which seems to be sufficiently regarded under current federal approaches. Stigma associated with identification as a victim, peer-group recrimination, guilt, and norms surrounding sexual intimacy is the primary factor affecting low reporting rates and the severity of the post-assault aftermath. Incorporating evidence-based approaches to sexual assault stigma is therefore critical not only to the health needs of victims but the effectiveness of Title IX’s reporting objective.

Increasing the sensitivity of federal investigations to the stigma surrounding reporting and recovery and therefore the health needs of victims does not require changes to statutory language or implementing rules, although Congress or the Department of Education may with time find it advisable to do so. Allowing victims greater control over the relationship between the reporting decision and the timelines for formal processes, for example, would go far toward moving university obligations and victim needs closer together. Similarly, creating alternative avenues for reporting, including anonymous options, and chat-type reporting, allows victims to integrate reporting with other important parts of recovery while also giving universities enough information to commence, even if not complete, investigatory obligations. While the DOE has required that universities appoint a Title IX Coordinator, there has been little effort to ensure that coordinators are familiar with the health needs of victims as opposed to compliance professionals drawn from poorly analogous commercial sectors. There are many options available to universities (and DOE enforcers) to better integrate the mental health needs of victims with the overarching aim of Title IX to better ensure equality on campus.

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