Title IX Adjudication Entrenches Gender Bias & Hostile Environment

Under pressure from the U.S. Department of Education’s Office for Civil Rights (OCR), U.S. higher-education institutions have established Title IX offices tasked exclusively with adjudicating claims of sexual assault and sexual harassment.  Expertise on sexual assault and sexual harassment is deeply associated with anti-men gender bias. Decades of anti-men gender bias is readily apparent in rape reporting and in public discussion of domestic violence. To provide education, to encourage use of reason, and to promote compassionate and responsible sexual activity, educational institutions should replace Title IX offices with broad-based Truth and Reconciliation Commissions on Gender and Punishment.

Harvard Law Professor Janet Halley provided a narrow view of the problem in her recent article, “Trading the Megaphone for the Gavel in Title IX Enforcement.” Professor Halley recounted:

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

While representing gross injustice, that story also represents common practice in addressing claims of domestic violence. Every year in the U.S., about a million civil petitions for restraining orders are issued ex parte with only perfunctory review. They are effective instruments for promoting criminalization. Universities preemptively issuing restraining orders on their students is merely following the path of domestic violence polices that helped to generate mass incarceration in the U.S.

Under university policies, culpability for alcohol-facilitated sex is attributed to men de facto. Professor Halley cited Harvard’s sexual assault policy on incapacitation and impairment:

[W]hen a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct, conduct of a sexual nature is deemed unwelcome, provided that the Respondent knew or reasonably should have known of the person’s impairment or incapacity. The person may be impaired or incapacitated as a result of drugs or alcohol or for some other reason, such as sleep or unconsciousness. A Respondent’s impairment at the time of the incident as a result of drugs or alcohol does not, however, diminish the Respondent’s responsibility for sexual or gender-based harassment under this Policy.

Professor Halley noted the “steep asymmetry between the consequences of drinking and drug use for the complainant and for the respondent.” Suppose that a woman and a man have alcohol-facilitated sex. They then simultaneously file complaints. Which gets the excuse of being drunk, and which the culpability for sex? In practice, as Professor Halley pointed out, the policies are biased toward treating women as sex victims and men as sex perpetrators. That aligns with decades of anti-men gender bias in reporting rape.

Dealing with the problem of mutuality is more advanced with respect to domestic violence. A large share of incidents of domestic violence involve mutual acts of domestic violence. If co-resident parties both petition for a restraining order, which party gets to continue living in the shared home and which party is immediately evicted? The administrative solution is simply bureaucratic. Petitions for restraining orders are always time-stamped in some order. Whichever petition is stamped first determines which gets first consideration. The petition stamped second is denied ex parte treatment by law. With respect to arrests for domestic violence, the problem of mutuality is more difficult to deal with bureaucratically.  To address that problem, almost all states have passed primary aggressor laws that gender-profile men for arrest for domestic violence. Because of deeply entrenched gender stereotypes, formally gender-profiling men as the perpetrators of sexual assault probably isn’t necessary to create acute gender bias in adjudicating sexual assault.

Authorized teaching about sexual assault, like authorized teaching about domestic violence, represents discursive power, not true knowledge. Professor Halley described the PowerPoint slides shown as required Title IX training on sexual harassment polices at Harvard Law School in the fall of 2014. Other than quotations from policy documents, the slides presented “selected neurobiological research”:

The takeaway lesson of these pages is that a victim of sexual assault may experience trauma, which in turn causes neurological changes, which in turn can result in “tonic immobility.” Tonic immobility, in turn, can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and “flat affect. ” Her story “may come out fragmented or ‘sketchy,’” and she can be “[m]isinterpreted as being cavalier about [the event] or lying.” These problems, in turn, can cause police and sexual harassment investigators to dismiss serious claims, tragically because of symptoms of the trauma itself.

If the complainant coherent and reliable reports that she has been sexually assaulted, that’s evidence that she was sexually assaulted. If the complainant is incoherent and unreliable, that’s also evidence that she was sexually assaulted. Is it any wonder that ten times more men than women are currently held in U.S. prison and jails? Professor Halley insightful noted:

So far, that is the only training provided to Harvard personnel handling sexual harassment claims directed to the social and psychological dynamics surrounding sexual assault. It is 100% aimed to convince them to believe complainants, precisely when they seem unreliable and incoherent. Without disputing the importance of the insights included in this section of the training, one can ask: precisely what do they prove? Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted.

These biased policies polices are entirely consistent with the legal profession’s lack of concern about anti-men sex bias is the criminal justice system.

Persons discussing due process in sexual assault adjudications face a hostile environment. The hostile environment for discussion of important issues of criminal justice is deeply connected to the vastly disproportionate representation of men in prison and jails.

Citation: Janet Halley, “Trading the Megaphone for the Gavel in Title IX Enforcement” 128 HARV. L. REV. F. 103 (2015) at 116, 113,  109-10.

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