How Betsy DeVos’ proposed Title IX changes would hurt Black campus rape survivors
Despite being largely ignored, we *do* exist.
During slavery, the rape of Black women was legal. Rape laws only addressed harsh punishments for Black men found guilty of assaulting white women. This legal invisibility of Black people as victims has a strong legacy that continues today: our conversations, policies, and media predominantly portray only white women as victims. This trend has been prevalent in recent conversations about Title IX, sexual violence in education, and race to the detriment of Black survivors.
College sexual assault victims are almost exclusively represented by White women in the media, yet numerous studies found that students of color are sexually assaulted at higher rates. The focus on white women as victims is happening at the expense of other survivors — who have their own unique experiences shaped by their identities after assault — by rendering the rest of us invisible. This problem is particularly dangerous in light of the Department of Education Secretary Betsy DeVos’ proposed changes to Title IX enforcement of gender-based discrimination. If these proposals are put into place, the way colleges will be allowed investigate and adjudicate sexual assault will have a devastating impact on Black college survivors.
The problem with ‘clear and convincing’
It’s 2019 and, unfortunately, society still approaches reports of sexual violence as an issue of credibility. Rather than approaching this type of abuse through a lens of “what happened?” the first question usually is “how can we prove the person who reported shouldn’t be believed?” The emphasis on the concept of “credibility” puts Black survivors at a distinct disadvantage.
Numerous studies have found that racist stereotypes about our inherent promiscuity follow us even in the aftermath of rape; people are more likely to blame Black survivors for their own assaults. These attitudes aren’t limited to Internet comment sections or hush conversations; they have real-life consequences. In the rare instance that a Black woman does report justice is an uphill battle. Compared to their white counterparts, prosecutors are less likely to file charges, juries are less likely to convict the assailants, and convicted assailants receive less harsh punishments. With Black survivors seen as inherently less credible, allowing schools to increase the evidence standard from the preponderance of the evidence to clear and convincing will make it easier for assailants of Black women to avoid accountability.
Live cross-examination is a post-traumatic nightmare
Access to mental health care in America is lacking, and cultural competency among professionals is in even more dire straits. Barriers to care are particularly acute for Black survivors who are less likely to seek mental health care after sexual assault due to economic barriers.
This makes the proposed rule to require direct questioning through live cross-examination particularly alarming. Black survivors would be more likely to endure this traumatizing process with untreated post-traumatic symptoms. Even under the best mental health conditions, this experience could be incredibly hostile. For a sexual assault survivor without the proper resources and support, it would only unnecessarily exacerbate the trauma and interrupt the healing process.
Experts on the ground agree. In October, the Association of Title IX Administrators released a statement opposing the integration of cross-examination, noting “the emotional toll and stresses of direct cross-examination on students at any age are in no way insignificant and cannot be ignored. Even with knowledgeable, well-trained advisors, emotional or verbal meltdown is considerably more likely than effective probing for truth.”
Survivors weigh the decision to report very carefully and are easily discouraged when the system looks set up to do more harm than good. This is especially so for Black college women, who are more likely to report if they think they’ll get support and be treated with respect. The possibility of public humiliation and intimidation through live questioning would have a further chilling effect on reporting already noted by civil rights groups like SurvJustice and the National Women’s Law Center.
The uncomfortable lies about Title IX and race
People who support the aforementioned changes claim it’s about bringing due process into the procedure and try to argue pro-survivor groups opposite it. That couldn’t be further from the truth. Due process is important for both the complainant and respondent; survivors want decisions to be based in fair adjudication, too. What they ignore is that due process can followed without making Title IX hearings more like criminal courts, which are notoriously bad at holding rapists accountable.
Some proponents, like Emily Yoffe and Lara Bazelon, try to justify their pro-DeVos position by using anecdotes about allegedly innocent Black men to frame gutting Title IX as a racial justice issue. Yet they provide weak arguments to justify attacking the civil right to an education free of sexual violence. Racial disparities throughout academia has been well-documented and differences in punishment are a real problem (something DeVos doesn’t believe). So, why is racism in education only a problem when we’re trying to effectively handle gender discrimination on our campuses? The real problem with Title IX, sexual assault, and race is that survivors of color continue to be ignored.
What makes Yoffe and Bazelon’s selective focus even more damaging is it contributes to the trend of rendering Black sexual assault survivors invisible. They silencing Black survivors by conjuring the stereotype of the Black male rapist. Since most rape is intraracial, Black victims often feel pressure to stay silent. Black women often say they don’t want to give evidence to support the stereotype of the Black male rapist. They’ll be even less motivated to report if schools likely won’t take punitive action against their assailant. The selective focus also hurts men: Black male survivors can fear being not believed because they know racism frames them only as the perpetrator of sexual violence, never the victim.
Making justice impossible for survivors isn’t the answer
Racism and rape in America have always been connected. Throughout history, powerful white people manipulated the public to believe lies about Black people to justify their dehumanization. During slavery, white slave owners created the lie that Black women were hypersexual — and therefore unrapeable — to justify their constant violation to create more children of color for slave labor. During Reconstruction, white men who feared integration used the myth of the Black male rapist to keep Black men away from “their women” and as a handy excuse for lynching Black men who acted like they didn’t know their place by being too successful or too proud. Addressing how this legacy manifests in college responses to rape requires an examination and deconstruction of the racial oppression that educational institutions inflict at every level — not discouraging rape survivors from reporting or seeking justice.
Sexual victimization during college can have lifelong physical, mental, social, career, and economic consequences that put the victim at a disadvantage through no fault of their own. The focus on white women as victims has made the struggles of Black student survivors invisible; Secretary DeVos’ proposed changes will only exacerbate that because if survivors don’t speak, academic institutions won’t know how to help them. If we don’t want to leave a generation of Black survivors with decreased opportunities after college because the government made it too onerous for them to assert their civil rights, we need to start working for policies that will protect the rights of students of color — on both sides.
