Betsy Devos and the Stacked Deck
This month, Secretary of Education Betsy DeVos announced that her administration would reverse an Obama-era policy that made it easier for victims of sexual assault to seek justice to their alleged accusers. Under the Obama administration, schools could convict students of assault under a “preponderance of the evidence.” Now, universities must see “clear and compelling” evidence that an assault took place––in other words, they must be more than certain that a crime occurred before punishing the accused.
If you’re buckling your seatbelt for a mainstream media feminist outcry about this reversal, well, don’t. Liberals, academics, and self-identified feminist lawyers have spoken out in cautious praise of the revision in recent weeks; they say the Obama administration’s policy was grossly unfair to the accused, and that DeVos’ new policy will right a wrong by restoring due process and reinstating equilibrium to the messy matter of proving guilt or innocence about something as intimate as sex.
Of course, I’m no advocate of miscarriages of justice either; I don’t want to see innocent college men expelled or shamed for crimes they didn’t commit. But, I also really, really don’t want to see innocent college women denied justice for crimes committed against them. Policymakers and so-called feminists who are concerned about the rights of the accused should recall that the status quo criminal justice system has never, ever been fair to women who are trying to prove the veracity of their assaults.
While no one should be punished for crimes they didn’t commit, it's important to note that historically, perpetrators of sexual assault have been able to avoid punishment for crimes they certainly did commit because of legal and social ambivalence to women's rights as full citizens.
You don’t need to go far to find evidence, both anecdotal and empirical, that the criminal justice deck is stacked against female victims of assault. Actress Amber Tamblyn wrote eloquently in the New York Times last week about coming forward about her experience with unwanted sexual attention, and about how authorities came to the table with the presumption that her viewpoint was illegitimate. Vice wrote recently about a UK study that showed that women’s sexual history is often weaponized in court during rape trials. And in July, one of Betsy DeVos’ minions told the New York Times that 90 percent of college rape allegations stem from drunken women willingly having sex, then going through a bad breakup and months later “deciding” it was rape.
These problems aren’t unique to our times by any means––and therein lies the problem. We live in a society with a whole lot of historical baggage around this issue. Our mores are built on centuries of disbelief of women’s narratives about their own bodies and experiences. Most of you probably know that it was once considered impossible to rape one’s wife; Susan B. Anthony herself opposed abortion because in the 19th century, threat of unwanted pregnancy was the only way for a woman to prevent her husband from raping her. A hundred and fifty years ago, consent barely existed as a concept. Crazy, right? Well, guess what: legal attitudes towards spousal rape only started changing in 1979. To put it in perspective, that is only ten years before this millennial writer's birth.
Speaking of millennials, all my fellow ‘90s girls will surely remember the famous sex scandals from the decade of our youth and the way women in those relationships were treated when their sex lives went on display before America. Remember when Anita Hill came forward about Supreme Court nominee Clarence Thomas’ sexual misconduct, and how his supporters labeled her as delusional and unstable? Remember when Monica Lewinsky was termed “a little nutty and a little slutty” by our collective nation––even by famous alleged feminists? These cases were a stark reminder that women aren’t treated fairly when sex and power dynamics are at play. These formative news stories helped guarantee that our generation, like every generation before us, was taught to respect the man and denigrate the women when it came to questions of sex and consent.
DeVos and her supporters are concerned about the deck being stacked against perpetrators, but the deck has been stacked against victims for centuries. Maybe the Obama-era policies needed improvement. But DeVos’ new policy is built on the lie that men’s and women’s lived experiences and testimony are seen as equal in the eyes of society. And how can a system built on that pretense ever lead to justice?
How to cite this page
Cataneo, Emily. "Betsy Devos and the Stacked Deck ." 28 September 2017. Jewish Women's Archive. (Viewed on June 6, 2023) <https://jwa.org/blog/betsy-devos-and-stacked-deck>.
DeVos relies on anecdotes to justify rescinding prior guidance--which actually worked very well when properly applied. A new system that allows one side to appeal is unfair--and against the principle of Title IX. Not to mention that the accussed can now be tipped off about allegations before giving an account of events. At Stop Sexual Assault in Schools we are very concerned about the way K-12 schools (already ill-prepared to implement TItle IX) will function with the removal of prior guidance and how they might implement these new, unfair procedures.