“When Will We Know?”—an ongoing series

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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.—Title IX

The new U.S. Department of Justice (DOJ) thinks that the larger problem in society is not the scourge of rape and sexual assault but the reporting of it. The authors of a new, leaked, memo from the Department of Justice appear the think that the quickest way to reduce sexual violence is to report it less.

A Justice Department draft memorandum that proposes “recommendations on the interpretation and enforcement of Title IX” was leaked on February 20 by one of the many online accounts of government employees who have “gone rogue” and are hard at work sharing with the world all the changes that have been introduced since the new presidential administration took the reins of power. Three days later, the document was confirmed to me as legitimate by a source.

The Twitter account that published the document, @ALT_USCIS, is operated by insiders who claim to be employed at the U.S. Citizenship and Immigration Service, and it has been a reliable source for information about the “ICE Raids” that took place the last three weeks and quite a few other things.

The thrust of the leaked draft memo is to change operational procedures in our nation’s schools and law enforcement from what has been a history of protecting victims of sexual assault to a new standard in which those accused of sexual assault are to be protected.

Because Title IX was crafted to help create an environment of equality in our public schools with an aspiration to someday achieve a “gender-neutral” educational environment, the draft memo alleges that schools are no longer “gender-neutral” … for men. Male students face “disparate treatment” and “disparate impacts” from that treatment, predominately in the area of “complaints of sexual violence.”

(Sound of needle scratching to a halt across a record. The memo is only two pages long, and it takes a full page to get to this point, but here is where its author or authors include details.)

This is the important section:

In order to protect the due process of all parties involved in a school’s sexual violence investigation, the Department should take the following actions and implement the following policies:
 
  • Witness must be available to be cross-examined, including the parties involved;
  • Every complainant’s sexual history, if relevant, may be introduced at the hearing. Currently, questions about the complainant’s sexual history with anyone other than the accused perpetrator should not be permitted.
  • Although schools must ensure that hearings are conducted in a manner that does not inflict additional trauma on the complainant, this concern must be weighed against the accused perpetrator’s right to a fair hearing.
  • A school must allow a complainant to be present for the entire hearing. Current Office of Civil Rights policy guidance does not allow a complainant to be present or the entire hearing if not allowed by the school.
  • The review of reports, investigations, and resolutions of student and employee conduct to ensure the preservation of the rights of the accused.

“Preservation of the rights of the accused.” Indeed. The more honest phrasing would read: “Preservation of only the rights of the accused.”

A word about the second-to-last item, which reads, “A school must allow a complainant to be present for the entire hearing.” If any reader is acquainted with a friend who has been sexually assaulted or raped, or if you yourself have been harassed, assaulted, or raped (in which case, you have my respect), perhaps you are aware that sometimes in hearings or trials the rape victim is allowed to not attend portions of the hearing or trial in which they will be forced to re-endure the assault or rape by listening to descriptions of it or viewing physical evidence. The victim’s body is most if not all of the argument. If they choose to not attend, they are not required to re-live the event.

If this draft memo becomes the stated policy of the Department of Justice, that protection will no longer be afforded to victims on school campuses. Charges of rape may decline as a result. The incidence of rapes will not decline.

Further, the victim must be willing to be cross-examined by representatives of the accused at the hearing. In addition to that, the “complainant’s sexual history, if relevant, may be introduced at the hearing.” As if sexual history has anything to do with an act of violence committed against a complainant. (Did an earlier draft of this memo include a bullet-point complaint about how “currently” what a victim was wearing at the time of the alleged assault is not to be discussed?)

This leaked draft memo is real.

Many of the online accounts of “rogue” federal offices (there are about eighty right now) are real and many may not be; some may exist as a tool for the current White House to trace the source of rumors and leaks. Some leaks exist as a way to test the popularity (or unpopularity) of a proposed change in policy.

The current administration seems to be deaf to outrage, so even if outrage followed the above change in the “enforcement of Title IX” from the protection of victims of sexual assault or rape to the protection against the possibility of a rape victim even pursuing justice against her assailant, the outrage would probably be ignored. We would be called “snowflakes” or some such. No fear of that though: outrage has not followed the leak. There are too many policy changes and executive orders that have been put into action during this long first month in office for citizens (even citizens who are fans of the new administration) to keep up. Every one of the policy re-interpretations and changes, each one of the executive orders, has only made life more difficult for some already weak person in an already challenged portion of society, and not one has enhanced the life of a single American. More will be revealed …

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This is the Tweet from @ALT_USCIS:

Exclusive: TITLE 9 Internal Draft MEMO from DOJ. changes coming. #title9 @Alt_DeptofED @educatorsresist @ALT_DOJ https://t.co/SY8UmAOWuF

— ALT🛂 Immigration (@ALT_USCIS) February 20, 2017

The document is a PDF, at this address: 3.PDF, and a photocopy of the email chain attached to the draft memo is here (also a PDF): 2.PDF.

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This is an update of a post from February 20.

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