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Colleges can raise the bar for proving sex assaults under new U.S. policy

The education secretary says the new system is fairer for the accused

Colleges investigating sexual assault complaints can use a higher standard of proof under new guidelines the Trump administration issued Friday. 

The announcement from U.S. Education Secretary Betsy DeVos changes guidelines put in place under former President Barack Obama. 

Colleges and universities will now be able to choose whether they want to keep using the Obama-era standard or adopt a harder-to-prove legal threshold that supporters say is fairer to those accused of assault.

Why the change?

In Friday's statement, DeVos says the new guidance "will help schools as they work to combat sexual misconduct and will treat all students fairly."

In a speech earlier this month she was more explicit about the reasons for the change. 

DeVos said sexual misconduct investigations being handled by her department's Office of Civil Rights are part of a "failed system" of enforcement, the Washington Post reported

“Instead of working with schools … the prior administration weaponized the Office for Civil Rights,” DeVos said. “We must do better because the current approach isn’t working."

She's talking only about on-campus investigations of sexual assault complaints – like the one involving University of Minnesota football players last year – not cases handled by police, prosecutors, and courts. 

What's different?

The change has to do with how much proof investigators need to decide someone committed a sexual assault. 

Under the Obama administration guidelines, schools were told to use the "preponderance of evidence" standard. Now they have the option of using "clear and convincing evidence" as their standard. 

Those may sound pretty similar to us, but in the legal world it makes a difference. The "clear and convincing" one is harder to prove, so a college that switches to that standard is raising the threshold for showing that someone committed sexual misconduct. 

The new guidance also lets colleges decide for themselves whether they want to have an appeals process after their investigations are finished. 

DeVos says the guidelines are interim ones because the Education Department is in the process of coming up with a new policy. 

Reaction 

A lawyer who represents students accused of sexual assault likes the change. Andrew Miltenberg told The Associated Press the current system ignores the presumption of innocence and leaves it up to the accused to prove there was no assault. 

Miltenberg says the new threshold schools can adopt is "a much more stringent standard and one that is less open to subjective interpretation."

Advocates for sexual assault victims have a different take on it. 

The president of the National Women's Law Center said in a statement the new guidance will have a "devastating" impact. 

"It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law, and make campuses less safe," Fatima Gross Graves said. 

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