Dear Colleague: When Due Process Matters More Than Equal Rights

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Maddie Rodriguez had gone through all the proper channels. The night she was raped, she reported it to campus police at Temple University. She went to Philadelphia’s Special Victims Unit and did a rape kit. She was interviewed by detectives and spoke with the District Attorney, who told her there was “not sufficient evidence for her case to go through to criminal trial.”

Unfortunately, she wasn’t at all surprised by this response. Out of every 1,000 rapes in the United States, only six perpetrators will be incarcerated, according to statistics from the Rape, Abuse & Incest National Network (RAINN). Since the criminal justice system requires evidence beyond a reasonable doubt, Rodriguez said she was “pretty much guaranteed not to win, because in the end, my situation was more of a he said/she said kind of deal.” Still, she was glad she was able to go ahead with a school trial, which had required a ‘preponderance of evidence standard,’ or 51% proof that the crime was committed. Due to recent decisions made by the Trump Administration, however , that standard could soon change.

On September 22nd, almost one year to the day that Rodriguez was raped, Secretary of Education Betsy DeVos rescinded critical Title IX guidance, most notably, the Dear Colleague Letter (DCL) issued by the Obama administration in 2011, which required all federally funded schools to adopt the minimal standard of proof for sexual assault cases.

DCL was a source of controversy since its passage, with many arguing that it was unconstitutional because it led schools to deny accused students their due process rights. This concern was echoed by acting assistant secretary at the Education Department’s Office for Civil Rights (OCR), Candice Jackson, in her letter rescinding DCL. As a result of increased pressure from the 2011 directive, the letter reads, “many schools have established procedures for resolving allegations that ‘lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.’”

Law professor, Audrey Wolfson Latourette, who recently published a law review article addressing the Title IX OCR directives, agrees, describing the Obama era guidelines as a “grievous assault against due process.” “I have witnessed so many cases where the universities took steps which were markedly damaging without sufficient justification,” Latourette said, citing an incident of due process violation at The University of Cincinnati, among others. “Of course we want to make up for past treatment—erroneous, egregious treatment of women—where these assaults were ignored. But to do so at the expense of denying the accused these fundamental rights?” she asked. “What is the point of a hearing that is not fair?”

For Angélique Roché, Vice President of External Affairs at the Ms. Foundation for Women, the argument for due process is being used as a tool to distract from the real problem. “It really has to do with the fact that we are dealing with a system that is innately blaming and shaming women for something that happened to them,” Roché said. “These protections were there for a reason.”

In Rodriguez’s case, she firmly believes that the accused had just as many rights throughout the Title IX trial as she did. “There was no difference in the process for me and for him. We both got the exact same guidance,” Rodriguez said. “I know for a fact he had the same amount of interviews I had, I know he was given the same information of how the trial would run, of what he would need to prepare, of the witnesses that he was able to have. He knew he was able to have a legal counsel and an emotional support person. He was made aware of everything I was made aware of.” Rodriguez and the accused both gave opening statements and a brief testimony. There was a screen between them, so Rodriguez did not have to view the accused rapist.

“Instead of me directly asking him questions, both he and I would write questions on a piece of paper. The paper would be given to a judge and she would deem whether the question was appropriate…then she would ask the questions,” Rodriguez says. She added that she was more confident going into trial because she knew she would not have to see her rapist. “All the other times I’ve seen him around campus…I had a panic attack. So if I had to see him or hear him directly ask me questions that day, I don’t think I would have been able to make it through the trial,” she said.

The judge found the accused guilty of rape. The verdict was then delivered to a school board, who decided that the rapist be put on Temple probation and removed from university housing. “When the judge found him responsible, he got really angry. He was throwing chairs and slamming doors,” Rodriguez said. He was supposed to be allowed ten days to appeal the judge’s decision, but they ended up giving him extra time, and we never found out why.” “Ultimately, he did appeal, but his reasons for appealing were not good enough for Temple to have a retrial,” she added.

The emphasis on due process rights for the accused does make sense, however. “Due process is really, really important,” said lawyer and equal rights advocate, Jean Sweeney. “It is what our democracy stands on.” In fact, due process is the only command mentioned twice in the constitution, both in the fifth and 14th amendments. Meanwhile, an explicit gender equality guarantee is nowhere to be found.

For Roché, the conversation surrounding Title IX would be different if an ERA were in place. “It goes back to the conversation of valuing the lives of women and girls,” she said.

Legal precedent around Title IX could change too. “If you put the 24 words to the Equal Rights Amendment in the Constitution of the United States, we have a legal framework that says to every judge, to every legislature, to every child in school, to everyone…that women are to be honored and respected equally with men,” Sweeney said. “Without that legal framework, what happens is it’s just done with piecemeal legislation [like Title IX], so it can be changed and rolled back so women’s rights become a political football.”

In Sweeney’s perspective, Title IX was the “backdoor” to the Equal Rights Amendment that never passed. It was passed by Congress in 1972, the same year the ERA was sent to the states for ratification. For Sweeney, the Obama era directives, along with former Vice President Biden’s “It’s On Us” campaign, were doing what the ERA, if it were in place, would be doing. Julie Graber, CEO of Gender EQA, a company that uses data to determine gender equity in business and public policy, agrees. Title IX is “the closest thing we’ve ever come to really attempting to guarantee equal rights for women,” Graber said.

Perhaps that is why the rescinding of Title IX guidance feels like a step backwards for many survivors advocates. “These are our rights. These are things that should be guaranteed to us,” Roché said.

 

Christina Shaman is a 2017 fellow in the Sy Syms Journalistic Excellence Program, funded by the Sy Syms Foundation. The Sy Syms Journalistic Excellence Program at Women’s eNews fellowship supports editorial and development opportunities for editorial interns in the pursuit of journalistic excellence.

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