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This guest post was written by Sarah Nesbitt, a Policy and Advocacy Organizer with Know Your IX and an alum of Washington University in St. Louis.
Being a survivor of campus sexual or intimate partner violence at a Missouri university has never been easy. Whether at the University of Missouri, where a student who reported her rape and saw the school take no action died by suicide, or at Washington University in St. Louis, where a student took to the media after the school dragged its feet in addressing her rape complaint, Missouri student survivors know that trauma feels even more painful when schools respond to their pleas for support with ambivalence.
As if this statewide institutional indifference combined with the onslaught of anti-survivor policies at the federal level weren’t bad enough, the Missouri state legislature is currently advancing a bill package that would further stack the deck against student survivors. If passed, Senate Bill 259 and its companion House Bill 573 would force schools to create potentially retraumatizing procedures that would deter survivors from reporting all together. The bills would allow respondents to directly cross-examine survivors and submit almost anything they want as evidence to the case – including the survivor’s mental health history. Even more, SB 259 would allow respondents to sue survivors for making a “false complaint” if their report is uncorroborated or their respondent isn’t found responsible (most aren’t). This bill sets survivors up to fail, especially ones that do not have access to high-dollar attorneys.
Mediation is extremely inappropriate for Title IX cases of sexual assault or intimate partner violence– in fact both the Bush and Obama Administrations’ Departments of Education expressly denounced it, and the Department of Justice’s Office on Violence Against Women and the National Council of Juvenile and Family Court Judges caution against it. Mediation is rooted in the idea that two parties can come together on an even playing field and resolve a dispute. Given the power dynamic that is characteristic of situations of sexual and intimate partner violence, safe and effective communication between survivor and perpetrator is highly unlikely. Despite this fact, SB 259 would require schools to allow mediation where both parties agree to it and would impose a $250,000 fine on schools who decline. Even if a respondent threatened, coerced, or manipulated a complainant into mediation, or even if a school had reason to believe the safety of either party or of the mediator would be in danger, the bill provides no escape valve.
These bills would create additional avenues through which respondents could intimidate and harass complainants. First, they would remove schools’ ability to screen evidence in Title IX proceedings, meaning respondents could submit irrelevant information, such as sexual or mental health history, for the purpose of intimidating, harassing, or embarrassing a complainant or witnesses. Second, they would allow respondents to directly cross-examine survivors. Recounting a traumatic experience to a group of strangers is intimidating enough; being scrutinized by the person who caused that trauma can be excruciating. In fact, many survivors drop their cases when they learn they will have to be directly questioned by their rapist or abuser about the violence.
In opposition to the principle of gender equity at the core of Title IX, these bills would require schools to discriminate against survivors. Relying on age-old stereotypes that women and girls falsely “cry rape,” the bills would compel schools to adopt a stricter standard of evidence just for sexual misconduct cases. Courts have long affirmed that “preponderance of the evidence,” which values the education of the complainant and the respondent equally, is the appropriate standard for adjudicating civil right violations. These bills, however, would force schools to use a “clear and convincing” standard, prioritizing the education of a respondent over that of a complainant. Increasing the burden of evidence only for sexual misconduct cases means survivors of sexual violence will be treated more harshly than any other victim of a discriminatory campus offense–subjecting them to additional discrimination on top of the violence they have already experienced.
Finally, these bills skew the process against lower resourced students. If passed, these bills would require schools to guarantee parties to Title IX proceedings a right to an attorney but would not assist students of limited economic means in securing that right. This means one party might secure a prestigious attorney to represent them against another student who either cannot afford one or cannot disclose to their family in order to access the financial resources needed to secure one. A right without access is only a right in theory; gender equity in education access should never be contingent on economic means. And that’s not the only way these bills would force survivors to weigh financial feasibility against safety. If passed, these bills would allow a respondent to sue a complainant for filing a ‘false claim or complaint.’ The problem is, the bills leave these terms undefined, so that could mean a respondent could file a lawsuit against a survivor for an uncorroborated complaint. Many valid complaints of sexual assault and intimate partner violence are uncorroborated by nature; this bill would push survivors into an impossible risk calculus that would chill reporting.
These bills are moving fast. In a state with one of the worst rates of maternal mortality — especially for Black women — and where an underground fire burning toxic waste continues to ravage the health of the local community, the state legislature has opted to turn its back on pressing issues like these and instead put its muscle behind a bill package that would effectively eviscerate the civil rights of Missouri students. We need your help to stop this bill. If you believe that survivors should be able to seek help from their school without risking a lawsuit, submit a letter demanding Missouri legislators vote “no” on SB 259 and HB 573.
