THE SEXUAL ASSAULT EPIDEMIC IN EDUCATION: A COMPARATIVE LOOK AT THE UNITED STATES AND AUSTRALIA.

• Author: Piccirillo, Rachel

1. INTRODUCTION

   Sexual assault is a problem that affects men and women alike; "[o]ne in [five] women and one in [sixteen] men are sexually assaulted while in college." (1) In the United States, sexual violence on college campuses is so increasingly prevalent that it is regarded as an epidemic. (2) To battle this epidemic plaguing unwitting college students, President Barack Obama and his Administration mandated that colleges follow certain provisions and guidelines administered under Title IX of the Education Amendments of 1972 (Title IX) to investigate, adjudicate, and resolve sexual assault cases. (3) Despite the Obama Administration's efforts to make Title IX an effective tool for ending campus sexual assault, Title IX has been criticized. (4) In response to this criticism, current President Donald Trump's Administration announced its plan to rollback Obama-era Title IX provisions and establish new mechanisms for enforcing Title IX. (5) This announcement comes at a critical time for both domestic and international colleges, specifically Australian universities, which are increasingly faced with cases of campus sexual assault. (6)

   Changes made by the Trump Administration, and the impassioned feelings it invokes in people, is illustrative of the complexity, delicateness, and importance of this issue. (7) This Note will examine how Title IX was historically applied to sexual assault cases on college campuses in the United States, and how, for better or worse, the Obama-era Title IX guidelines altered the adjudication process on college campuses. (8) Part II will highlight the evolution of Title IX in the United States and its controversial application to campus sexual assault, as well as Australia's history with sexual violence. (9) Part III will discuss the strengths and weaknesses of Obama-era Title IX guidelines, and compare and contrast the guidelines to those used on Australian university campuses. (10) Part IV will analyze the now-rescinded Obama-era provisions against the Trump Administration's interim guidelines--focusing on how the two standards of proof advocated for by both Administrations hold up against those used at Australian universities. (11) In Part V, this Note will conclude that a "clear and convincing evidence" standard of proof casts an insurmountable burden on survivors who report sexual assaults, and the "preponderance of the evidence" standard should be used consistently across all American and Australian universities. (12)

2. HISTORY

   1. A Look at Title IX in the United States

1. The Origins of Title IX

   Prior to 1972, American women were sidelined in a variety of educational activities inside and outside of the classroom. (13) Before Title IX, "sex discrimination was illegal in many circumstances," yet educational institutions were still allowed to discriminate on this basis. (14) In 1969, doctorate graduate Bernice Sandler was rejected from a teaching position at the University of Maryland because of her gender. (15) Sandler sought to eliminate sex discrimination from education and filed a class action lawsuit against all U.S. universities and colleges. (16) The complaint made its way to both the Department of Labor and Congress and ultimately led to the creation of Title IX in the Education Amendments of 1972. (17)

   2. General Scope and Interpretation of 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 [f]ederal financial assistance." (18) The two main objectives of Title IX are: "(1) to prohibit sex discrimination by any institution receiving federal funding; and (2) to provide individuals with effective remedies against such discrimination." (19) Title IX is enforced by the Department of Education's Office for Civil Rights (OCR) and applies to every component of federally funded education programs. (20) Title IX was intended to be a powerful deterrent against discrimination in education; the Supreme Court has recognized this legislative intent by construing the statute broadly and by allowing individuals to bring private causes of action against academic institutions. (21) Various Supreme Court cases decided that private causes of action were allowed and monetary damages could be awarded. (22)

   3. Application to Sexual Assault

      Historically, Title IX was enforced to ensure that colleges were providing equal opportunities in athletics to both men and women. (23) In 2011, the OCR made clear that Title IX guidelines applied to sexual violence on college campuses in a Dear Colleague Letter. (24) The Obama Dear Colleague Letter defined sexual violence and was intended to help colleges understand their roles and responsibilities in combating sexual violence on their campuses. (25) The letter mandated that colleges and universities use a "preponderance of the evidence" standard when assessing alleged sexual assaults on their campuses. (26) The letter supported the "preponderance of the evidence" standard as an evaluation tool, based on the United States Supreme Court's use of this standard in civil litigation discrimination claims under Title VII of the Civil Rights Act of 1964. (27)

      2. Australia's Sexual Assault Epidemic

      All thirty-nine Australian universities worked with the Human Rights Commission to better understand the issues of sexual assault and harassment that occur too often on their campuses. (28) A majority of students reported feeling that their universities were not doing enough to combat the sexual assault and harassment by "promot[ing] clear and accessible information on sexual harassment procedures, policies and support services." (29) Twenty-six percent of students reported being "sexually harassed in a university setting in 2016." (30) Typically, the survey showed men were the assailants of both sexual assault and harassment. (31) The Human Rights Commission report is the first comprehensive set of data that has been gathered on this subject. (32) It is clear from the report that sexual assault and harassment occurs frequently, and yet is substantially underreported. (33)

      Significant barriers exist which undercut attempts to report. (34) Structural barriers exist in the bureaucratic system present in each institution. (35) In addition to other reasons, students report that they failed to file a formal complaint because "they did not know to whom to report" or "how to report." (36) Cultural barriers also prevent students from coming forward. (37) Wide-spread beliefs regarding "gender roles and relationships" drive the violent behaviors experienced on University campuses across Australia. (38)

      It was not until the 1960s and 1970s that sexual violence emerged as a significant issue in Australia. (39) The women's movement of the 1970s contradicted long held historical understandings of sexual violence. (40) The feminist movement shed light on the fact that "sexual violence was indicative and symptomatic of patriarchal societal attitudes towards women and children and the unequal distribution of power." (41) The 1980s ushered in state inquiries into sexual violence and the experiences of sexual assault victims with the justice system. (42) Gendered language appeared often in Pre-1980s legislation, which resulted in men only being charged with sexually abusing women. (43) By 2003, all gendered language was removed from most sexual offense legislation. (44)

      The sexual assault problems plaguing universities are representative of the issues afflicting Australia as a whole. (45) The lack of sexual assault convictions may be caused by a number of factors including: (1) low rate of reported sexual offenses; (2) treatment of alleged survivors throughout trial; and, (3) deep-rooted beliefs in sexual assault myths. (46) Historically, Australia had difficulty obtaining accurate data because of underreporting and great inconsistency in how and what is recorded. (47) Over the past thirty years, however, there are observable changes in the way Australian governments have thought about sexual assault, especially in relation to children, and how they work to prevent sexual assault. (48)

      As the Australian government's understanding on sexual violence and its effects on victims evolved, so did its policies on sexual assault. (49) Sexual assault has both long-term and short-term effects on a survivor's physical and mental health. (50) Australia has come to recognize and accept the impact sexual violence can have on an individual, and as a result, focused legislation on clearly defining consent. (51) These legislative efforts have been helpful, but sexual violence remains a difficult crime to prosecute. (52)

3. FACTS

   1. U.S. College Procedures

      1. Different Definitions of Sexual Assault

         Schools have the freedom to decide how to handle sexual assault complaints and investigations on their campuses. (53) In the United States, universities and colleges often use broad language in their definitions of sexual assault and harassment. (54)

         These vague definitions can be a contributing factor to the underreporting of sexual assault or harassment. (55) Different definitions of sexual assault are problematic because they lead to mass confusion and misunderstanding on what is sexual assault. (56)

      2. Campus Policies for Handling Sexual Assault

         The Obama Dear Colleague Letter provided colleges with guidelines on how to handle sexual assault complaints, but it granted colleges the flexibility to create their own discipline procedures within the guideline's requirements. (57) The rules of evidence do not apply in campus sexual assault proceedings. (58) Critics argue the lack of conformity with the adoption of some evidentiary rules leads students accused of sexual assault to form inadequate defenses during proceedings. (59) Some colleges find an accused student guilty if there is evidence the complainant was...