Do The Proposed Title IX Changes Protect The Accused, Or Hurt Accusers? Two Lawyers Weigh In

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Photo: Betsy DeVos Sexual Assault Title IX Protest
Sonja Breda, 23, right, holds a sign saying "Stop Betsy" as a group of survivors of sexual violence and their supporters gather to protest proposed changes to Title IX before a speech by Education Secretary Betsy DeVos, Thursday, Sept. 7, 2017, at the George Mason University Arlington, Va., campus.

The rights of accusers versus those of the accused are at the heart of a national debate over how colleges should handle sexual misconduct allegations.

Education Secretary Betsy DeVos has proposed changes to current Title IX regulations. The new rules mark a shift from Obama-era guidelines, which critics said denied due process to the accused.

The public can comment on DeVos' suggested regulations through the end of January.

Denver criminal defense attorney Dan Recht generally supports the new guidelines. Meanwhile. Boulder attorney John Clune, who specializes in sexual misconduct cases, disagrees with DeVos' changes.

Recht and Clune talked with Colorado Matters about the proposed regulations and the differences between the criminal justice system and the college system.

Answers were edited and condensed for clarity.

Interview Highlights

On the change from "unwelcome conduct" to "severe, pervasive and objectively offensive":

Recht: "What had happened prior to this is that the definition of sexual misconduct was so broad, so very broad, that it was including unwanted verbal advances and things that maybe shouldn’t be included. That definition you just read is language right out of the U.S. Supreme Court and language that has been tested and that I would agree with."

Clune: "It’s very problematic. The original definition from the Department of Education was ‘unwelcome conduct of a sexual nature,’ but the reality was most schools were not implementing a definition that was so broad. There were individual schools that were embracing difficult definitions. That should’ve been the solution, to fix some of the problems at the individual schools.

But when you have a standard that says that it has to be something that is so severe and pervasive to effectively deny somebody's educational opportunities, what you are setting up is a system where individual victims have to endure a certain level of sexual harassment and abuse before it rises to a particular level that the school has to respond."

On the rate of false accusations and lawsuits filed by accused students:

Clune: "There’s been 150 lawsuits that have been filed on behalf of accused students who are alleging due process violations over the span of the past 4 years. So to put that in context, at Yale College, there have been 150 allegations of sexual misconduct complaints filed in this semester alone. That’s at one school. There are 5,300 colleges and universities in America.

There are endemic problems with sexual assault on campus. We know that 1 in 5 women are subjected to sexual assault in their time in college. We know that 90% of those women or men are not reporting their allegations of sexual abuse. There are things college students need significant help with from the Department of Education."

Recht: "It depends on how you define rare. Let’s say only 1 in 100 of accusations is false. That's a whole lot of young men being falsely accused, and young women. I don’t know the number, I think it’s a greater number than that. I’m simply saying if it’s a very small percentage, still, over the course of how many accusations get made, that is many, many many lives ruined. Importantly, keep in mind, these very kind of allegations have been dealt with for eons in the criminal justice system.

And there’s all the due process protections that there should be on college campuses as well. And still, people readily get convicted as any sex offender should, but there’s a protection of innocent people. So what this administration is saying is you have to presume people innocent, and you have to presume people accused of such terrible acts innocent. And I don’t see the problem with that."

On potentially including live hearings with cross examinations at colleges:

Clune: "The reality is that the criminal justice system is designed so that there are more rights for the accused individuals. And it should be that way.

That is not the same as a civil rights case against individuals at the university level where the whole purpose of Title IX is to make sure that men and women are treated equally. So when we do things like create these live hearing processes or require live cross examination, these are rights that we’re building in to again stack the deck for the accused like we would in the criminal justice system. It is not appropriate in a civil rights model.

What Betsy Devos has designed is a more hostile system than the criminal justice system. You’re going to have the requirement of a live hearing, you’re going to have the requirement of cross examination, but there is no judge there. There is no prosecutor there to object to questioning."

Recht: "There is nothing more important to the truth seeking process than cross examination. Our Supreme Court has said that over and over, and I just believe it to be true. The judicial system in the United States is the envy of much of the world in large part because we allow cross examination. There isn’t a better mechanism for ferreting out the truth than the ability to cross examine an accuser. And without that, way too many innocent people are convicted and made to suffer the consequences."