COMBATTING SEXUAL MISCONDUCT: AMERICAN HIGHER EDUCATION DURING THE #METOO ERA.

Author:Trudeau, Aubrey
 
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"Bravery is contagious. Indeed, that's a driving force behind the #MeToo movement. And you sharing your story is going to have a lasting, positive impact on so many survivors in our country. We owe you a debt of gratitude for that, Doctor."--Senator Patrick Leahy (D-VT) (1)

  1. INTRODUCTION

    Sexual misconduct occurs throughout the world and affects people in all industries and aspects of life; for instance, in October 2017, The New Yorker published Ronan Farrow's article about the numerous sexual misconduct allegations against Harvey Weinstein, a previously renowned movie producer in Hollywood. (2) The article details the accounts of several disturbing experiences women had with Weinstein, and how he paid them hush money to prevent anyone from finding out about the abuse. (3) Their accounts describe his horrific conduct that ranged from inappropriate and explicit comments to sexual misconduct, which prompted sexual assault and rape charges to be brought against him, and ultimately led to his subsequent arrest. (4)

    The allegations against Weinstein motivated more men and women in Hollywood to come forward about their sexual misconduct experiences, leading several companies to take action against other prominent figures in the entertainment industry. (5) In an attempt to mitigate the issue, certain companies and legislatures have taken action, and a legal defense fund, Time's Up, has been created; however, there is much more to be done to combat workplace sexual misconduct throughout the country. (6)

    The #MeToo movement also seems to have encouraged more victims of sexual misconduct in educational institutions, sports, and politics to come forward. (7) It has sparked a national conversation about sexual misconduct in America, specifically shedding light on the fact that it is not just a Hollywood or workplace issue, but is also prevalent in other realms of society, including the current presidency. (8) Notwithstanding where sexual misconduct occurs, similar barriers exist to discourage people from coming forward such as financial concerns, fear of retaliation or not being believed, and lack of resources and training to deal with claims of misconduct. (9)

    Not only are sexual assault and abuse survivors still facing the same challenges of coming forward, others who are aware of the crimes are often hesitant to report it, or try to cover it up entirely. (10) The most publicized examples of such bystander behavior includes the Catholic Church priests' child sex abuse scandals and many outrageous incidents of sexual assault in schools and prominent institutions throughout the country. (11)

    This Note focuses on the recent headlines involving sexual misconduct on college campuses and the ways such claims are handled. (12) This Note will analyze the current standards and policies put in place to help victims of sexual misconduct on college campuses. (13) Further, this Note provides suggestions on how rules and guidelines can be improved and discusses other measures that should be taken to encourage victims to come forward and to ensure safer campus environments for future generations of students. (14) Although the recent #MeToo movement brings the pervasiveness of sexual misconduct in America to the forefront, much more needs to be done to end this public health epidemic in higher education. (15)

  2. FACTS

    1. Sexual Misconduct Definitions and Statistics

      Sexual assault is defined by the Advocates for Human Rights as "nonconsensual sexual contact that is obtained through coercion or the use or threat of force," and sexual contact is defined as molestation, fondling, attempted rape, rape, and "other sexually abusive acts." (16) The United States Department of Education also have their own definitions of sexual violence, sexual harassment, and sexual abuse. (17) The defining characteristic of sexual assault is that its unwanted nature and certain conduct may be unwanted and non-consensual in one instance, but wanted and consensual in another. (18)

      Sexual assault can be committed by force or by coercion through "intimidation, manipulation, threats of negative treatment, and blackmail." (19) Sexual assault often occurs in relationships of trust such as in the home by a relative or intimate partner, in a work environment, in the community, and/or in institutional settings by a teacher, doctor, or coach. (20) Recent studies show the grave statistics regarding sexual assault in America: one out of every six women and one out of every thirty-three men is or will be a victim of attempted rape or rape in their lifetime. (21) However, these numbers may be significantly undervalued due to a lack of reporting, which makes the statistics all the more troubling. (22)

    2. Title IX

      Title IX states, "[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...." (23) This discrimination includes all forms of sexual assault that occur on-campus or anywhere there is a connection with the educational institution, such as at athletic events or other events represented by the school. (24) Any school, from kindergarten to college, that receives federal government funding must adhere to Title IX and must implement "policies prohibiting sexual harassment and assault, prompt and thorough investigations of complaints, training of staff, and the assignment of a person who oversees implementation of the law," known as a Title IX coordinator. (25)

      The Title IX compliance standards represent a professional standard of care for schools and educational environments, and the requirements set forth are the minimum requirements for schools. (26) Furthermore, regardless of whether a school receives federal funding, students can initiate an investigation through the Department of Education's Office for Civil Rights ("OCR"), a federal agency tasked with enforcing Title IX. (27) In order to provide a better understanding of how to comply with Title IX, OCR published Dear Colleague Letters, which provided guidance and suggestions for schools on complying with Title IX. (28) The letter released in April 2011 was the most influential advice regarding Title IX in years. (29) Despite the Department of Education unfortunately rescinding this letter in 2017, it has since announced new rules regarding the legal standard for proving sexual assault allegations. (30)

      In 1999, the Supreme Court defined the standards for an individual to bring a private cause of action under Title IX for student-to-student or peer harassment. (31) For a school receiving Title IX funding to be held responsible for sexual misconduct, the school must have had proper notice that they could be held liable, must act with deliberate indifference to acts of harassment, and must exercise substantial control over the harasser and the situation in which the harassment occurs. (32) The deliberate indifference requirement is shown if a school receives notice of the claim of sexual misconduct, and the school's subsequent response is "clearly unreasonable in light of the known circumstances." (33)

  3. HISTORY

    1. Sexual Assault Reform in the United States

      In the 1970's, sexual assault reform advocates sparked a wave of change in the United States. (34) For the first time, studies were conducted on how sexual assault affects survivors, prompting reform to laws and procedures regarding sexual assault. (35) Nevertheless, these preliminary laws erroneously focused on the victim's behavior, which prompted the states and Congress to enact rape shield laws. (36) Further, in 1978, the Federal Rules of Evidence incorporated a rape shield provision, which currently states:

      The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition. (37) In 1994, Congress passed the Violence Against Women Act ("VAWA") "[i]n recognition of the severity of the crimes associated with domestic violence, sexual assault and stalking," defining sexual violence as a violation of one's civil rights and providing a federal civil rights remedy for sexual assault claims. (38) However, the Supreme Court decided in United States v. Morrison that Congress did not have the power to create a federal civil rights remedy by way of the VAWA because that power did not fall within the bounds of Congress's spending power. (39) The Court did decide, however, that the states have general police power to implement this remedy and that the VAWA was allowed to continue serving its many other purposes, such as services, education, and training for victims of sexual and domestic violence. (40) Unfortunately, the VAWA expired in December of 2018 during a government shutdown, and has since been subject to reauthorization from the time the shutdown ended. (41) The House of Representatives has approved a new version of the VAWA, but it has yet to pass through the Senate. (42)

      A few other examples of advancements towards ending sexual assault in recent years have come in the form of creating non-profits and enacting federal legislation. (43) In 2017, eight congressmen resigned from office after being accused of sexual misconduct. (44) That same year, Congress passed sexual assault legislation, originally introduced in 2014, which otherwise might not have been enacted without the #MeToo movement. (45) In 2017, Congress launched a nonprofit organization called SafeSport in response to allegations of sexual abuse among U.S. Olympic teams. (46) The organization was launched to provide expertise and assistance to these sexual assault survivors in an attempt to help them bring complaints. (47) It is also utilized to assist in investigating and resolving reports of misconduct and for developing...

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