Sexual Harassment: Probably Guilty is Good Enough

Glenn Ricketts

As we learned recently through our friends at the Foundation for Individual Rights in Education (FIRE), the US Education Department’s Office for Civil Rights (OCR)has announced some very troubling new guidelines for the sexual misconduct policies of most academic institutions.   If your school receives any kind of federal funding, or if its students receive federal loans – just about everybody, in other words - then the new rules are applicable. 

In a nutshell, it’s going to be a lot easier to find you guilty of sexual harassment. That’s because under OCR’s new mandatory (no, they aren’t optional) procedural guidelines, campus investigating bodies are directed to apply a much less rigorous standard of proof to establish guilt. From now on, a “preponderance of evidence” - about 50.1% - will be all that’s needed to do the trick. In other words, the goalposts have been moved to midfield, at least for accusers and the officials who investigate their complaints. 

As FIRE notes, “preponderance of evidence” is a test employed primarily in civil suits, usually involving monetary disputes between individuals. Conviction of sexual misconduct, on the other hand carries potentially far more serious consequences ranging from expulsion to criminal charges, and should thus have to meet a stricter burden of proof, as it has to this point. Now, however, it’s going to be much easier to make such charges stick. 

Too bad for the accused, because if you happen to be familiar with the sexual harassment codes in place on most campuses for some time now, you’re probably bewildered that this particular chute is getting an even larger dose of grease. OCR certainly won’t have to twist any arms to secure institutional “compliance” with the new regulations, since it has essentially told campus administrators that they must do what they’ve already been very eagerly doing for quite some time. The vague, mischievously imprecise definitions of sexual harassment, the enormous latitude within which fantastic or frivolous accusations were admissible, the chilling effects on academic freedom and the kangaroo court proceedings that made hash out of academic due process were all noted in our 1993 statement, Sexual Harassment and Academic Freedom.

Nothing improved at all, of course, and we’ve revisited the subject a number of times since then. In recent years, we’ve looked at some bizarre but actual case histories, the mandatory sexual harassment “training” programs imposed on many college faculties under the presumption of collective guilt and the sheer power of intimidation administrators often wield in the name of providing a “safe” environment for everyone. 

And all of these baleful institutional dynamics, usefully dubbed the Sexual Harassment Industry by Daphne Patai (Heterophobia: Sexual Harassment and the Future of Feminism), have just received a magnum steroid shot from OCR. I for one don’t need to ponder the consequences.


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