Education Department Proposes New Definition of Sexual Assault and Presumption of Innocence on College Campuses

Earlier this month, the United States Department of Education proposed new rules for handling sexual harassment and assault on college campuses that would enhance the rights of the accused.

The proposed change would narrow the definition of sexual misconduct to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This is a significant change from the Obama administration’s much broader definition of sexual harassment as “unwelcome conduct of a sexual nature.”

Additionally, the rule changes would include a “presumption of innocence” of the accused. The accused party would have “an equal opportunity to review all evidence collected; and the right to cross-examination the victim, subject to ‘rape shield’ protections.”

“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” said Secretary of Education Betsy DeVos. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”

Widespread opposition to the rule changes quickly materialized. For example, the American Association of University Women issued a strong critique of the proposed changes. In a statement, the AAUW said that “make no mistake — the Department of Education’s actions amount to a blatant rollback of strong and necessary protections for students, and particularly for student survivors of sexual assault. The rule would put in place school processes that make it harder for students to come forward and receive the support they need when they experience sexual harassment or assault.”

Before they are enacted, the proposed rule changes face a public comment period of 60 days.

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