THE SEXUAL ASSAULT EPIDEMIC IN EDUCATION: A COMPARATIVE LOOK AT THE UNITED STATES AND AUSTRALIA.
Sexual assault is a problem that affects men and women alike; "[o]ne in [five] women and one in [sixteen] men are sexually assaulted while in college." (1) In the United States, sexual violence on college campuses is so increasingly prevalent that it is regarded as an epidemic. (2) To battle this epidemic plaguing unwitting college students, President Barack Obama and his Administration mandated that colleges follow certain provisions and guidelines administered under Title IX of the Education Amendments of 1972 (Title IX) to investigate, adjudicate, and resolve sexual assault cases. (3) Despite the Obama Administration's efforts to make Title IX an effective tool for ending campus sexual assault, Title IX has been criticized. (4) In response to this criticism, current President Donald Trump's Administration announced its plan to rollback Obama-era Title IX provisions and establish new mechanisms for enforcing Title IX. (5) This announcement comes at a critical time for both domestic and international colleges, specifically Australian universities, which are increasingly faced with cases of campus sexual assault. (6)
Changes made by the Trump Administration, and the impassioned feelings it invokes in people, is illustrative of the complexity, delicateness, and importance of this issue. (7) This Note will examine how Title IX was historically applied to sexual assault cases on college campuses in the United States, and how, for better or worse, the Obama-era Title IX guidelines altered the adjudication process on college campuses. (8) Part II will highlight the evolution of Title IX in the United States and its controversial application to campus sexual assault, as well as Australia's history with sexual violence. (9) Part III will discuss the strengths and weaknesses of Obama-era Title IX guidelines, and compare and contrast the guidelines to those used on Australian university campuses. (10) Part IV will analyze the now-rescinded Obama-era provisions against the Trump Administration's interim guidelines--focusing on how the two standards of proof advocated for by both Administrations hold up against those used at Australian universities. (11) In Part V, this Note will conclude that a "clear and convincing evidence" standard of proof casts an insurmountable burden on survivors who report sexual assaults, and the "preponderance of the evidence" standard should be used consistently across all American and Australian universities. (12)
A. A Look at Title IX in the United States
I. The Origins of Title IX
Prior to 1972, American women were sidelined in a variety of educational activities inside and outside of the classroom. (13) Before Title IX, "sex discrimination was illegal in many circumstances," yet educational institutions were still allowed to discriminate on this basis. (14) In 1969, doctorate graduate Bernice Sandler was rejected from a teaching position at the University of Maryland because of her gender. (15) Sandler sought to eliminate sex discrimination from education and filed a class action lawsuit against all U.S. universities and colleges. (16) The complaint made its way to both the Department of Labor and Congress and ultimately led to the creation of Title IX in the Education Amendments of 1972. (17)
2. General Scope and Interpretation of Title IX
Title IX states "[n]o 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 [f]ederal financial assistance." (18) The two main objectives of Title IX are: "(1) to prohibit sex discrimination by any institution receiving federal funding; and (2) to provide individuals with effective remedies against such discrimination." (19) Title IX is enforced by the Department of Education's Office for Civil Rights (OCR) and applies to every component of federally funded education programs. (20) Title IX was intended to be a powerful deterrent against discrimination in education; the Supreme Court has recognized this legislative intent by construing the statute broadly and by allowing individuals to bring private causes of action against academic institutions. (21) Various Supreme Court cases decided that private causes of action were allowed and monetary damages could be awarded. (22)
3. Application to Sexual Assault
Historically, Title IX was enforced to ensure that colleges were providing equal opportunities in athletics to both men and women. (23) In 2011, the OCR made clear that Title IX guidelines applied to sexual violence on college campuses in a Dear Colleague Letter. (24) The Obama Dear Colleague Letter defined sexual violence and was intended to help colleges understand their roles and responsibilities in combating sexual violence on their campuses. (25) The letter mandated that colleges and universities use a "preponderance of the evidence" standard when assessing alleged sexual assaults on their campuses. (26) The letter supported the "preponderance of the evidence" standard as an evaluation tool, based on the United States Supreme Court's use of this standard in civil litigation discrimination claims under Title VII of the Civil Rights Act of 1964. (27)
B. Australia's Sexual Assault Epidemic
All thirty-nine Australian universities worked with the Human Rights Commission to better understand the issues of sexual assault and harassment that occur too often on their campuses. (28) A majority of students reported feeling that their universities were not doing enough to combat the sexual assault and harassment by "promot[ing] clear and accessible information on sexual harassment procedures, policies and support services." (29) Twenty-six percent of students reported being "sexually harassed in a university setting in 2016." (30) Typically, the survey showed men were the assailants of both sexual assault and harassment. (31) The Human Rights Commission report is the first comprehensive set of data that has been gathered on this subject. (32) It is clear from the report that sexual assault and harassment occurs frequently, and yet is substantially underreported. (33)
Significant barriers exist which undercut attempts to report. (34) Structural barriers exist in the bureaucratic system present in each institution. (35) In addition to other reasons, students report that they failed to file a formal complaint because "they did not know to whom to report" or "how to report." (36) Cultural barriers also prevent students from coming forward. (37) Wide-spread beliefs regarding "gender roles and relationships" drive the violent behaviors experienced on University campuses across Australia. (38)
It was not until the 1960s and 1970s that sexual violence emerged as a significant issue in Australia. (39) The women's movement of the 1970s contradicted long held historical understandings of sexual violence. (40) The feminist movement shed light on the fact that "sexual violence was indicative and symptomatic of patriarchal societal attitudes towards women and children and the unequal distribution of power." (41) The 1980s ushered in state inquiries into sexual violence and the experiences of sexual assault victims with the justice system. (42) Gendered language appeared often in Pre-1980s legislation, which resulted in men only being charged with sexually abusing women. (43) By 2003, all gendered language was removed from most sexual offense legislation. (44)
The sexual assault problems plaguing universities are representative of the issues afflicting Australia as a whole. (45) The lack of sexual assault convictions may be caused by a number of factors including: (1) low rate of reported sexual offenses; (2) treatment of alleged survivors throughout trial; and, (3) deep-rooted beliefs in sexual assault myths. (46) Historically, Australia had difficulty obtaining accurate data because of underreporting and great inconsistency in how and what is recorded. (47) Over the past thirty years, however, there are observable changes in the way Australian governments have thought about sexual assault, especially in relation to children, and how they work to prevent sexual assault. (48)
As the Australian government's understanding on sexual violence and its effects on victims evolved, so did its policies on sexual assault. (49) Sexual assault has both long-term and short-term effects on a survivor's physical and mental health. (50) Australia has come to recognize and accept the impact sexual violence can have on an individual, and as a result, focused legislation on clearly defining consent. (51) These legislative efforts have been helpful, but sexual violence remains a difficult crime to prosecute. (52)
A. U.S. College Procedures
1. Different Definitions of Sexual Assault
Schools have the freedom to decide how to handle sexual assault complaints and investigations on their campuses. (53) In the United States, universities and colleges often use broad language in their definitions of sexual assault and harassment. (54)
These vague definitions can be a contributing factor to the underreporting of sexual assault or harassment. (55) Different definitions of sexual assault are problematic because they lead to mass confusion and misunderstanding on what is sexual assault. (56)
2. Campus Policies for Handling Sexual Assault
The Obama Dear Colleague Letter provided colleges with guidelines on how to handle sexual assault complaints, but it granted colleges the flexibility to create their own discipline procedures within the guideline's requirements. (57) The rules of evidence do not apply in campus sexual assault proceedings. (58) Critics argue the lack of conformity with the adoption of some evidentiary rules leads students accused of sexual assault to form inadequate defenses during proceedings. (59) Some colleges find an accused student guilty if there is evidence the complainant was incapacitated due to drugs or alcohol, reasoning that affirmative consent cannot be given if the complainant is incapacitated. (60) It is reported that a "majority of campus sexual assaults occur when women are incapacitated, primarily by alcohol." (61) The Obama Dear Colleague Letter mandated colleges to use a "preponderance of the evidence" standard when assessing guilt in sexual misconduct cases. (62)
3. Title IX in 2018
In September 2017, President Trump's Secretary of Education, Betsy DeVos, announced the Administration's plans to rollback key guidelines from the Obama Dear Colleague Letter. (63) One major change is the standard to be used in sexual misconduct cases on college campuses. (64) The change from a lower standard, "preponderance of the evidence," to the higher standard, "clear and convincing evidence," is the Trump Administration's attempt to protect accused students. (65) Following the rollback announcement, many expressed grave concern that the higher standard will lead to mass confusion among colleges, discourage reporting, and will be a giant step back in colleges' pursuits to foster safe campuses. (66)
B. Australia's Sexual Assault Problem
The United Nations reports that Australia has one "of the highest rates of reported sexual assault in the world..., and over the past year," reports of on-campus assaults rose steadily. (67) A recent report from End Rape on Campus Australia states that Australian universities often "failed to support victims of sexual assault and harassment" and worked to hide sexual assaults in order to preserve their reputations. (68) Students allege that universities ignore complaints and refuse to adequately discipline those who commit sexual harassment or assault. (69) Unlike in the United States, Australian universities lack guidelines or formal provisions to handle sexual assault complaints. (70) Some universities have "set up rape hotlines and improve training" offered to staff, faculty, and students; however, many students and activists doubt universities' commitment to stopping sexual misconduct. (71)
The Australian Human Rights Commission found that one in five women have experienced sexual violence, and one in two students were sexually harassed at least once in 2016. (72) Women were substantially more likely than men to have experienced "inappropriate staring or leering" at a university. (73) According to the report, "trans and gender diverse students were more likely than men or women to report" incidents of sexual harassment. (74) Common spaces where students mostly experience sexual harassment are in university teaching and social spaces. (75)
Those who have experienced sexual assault and harassment grapple with various mental health issues as a result. (76) Many victims report suffering from PTSD and other emotional issues stemming from their experiences on university campuses. (77) Many survivors also struggle with substance abuse issues and suicidal thoughts. (78) Victims of on-campus abuse report feeling anxious "about being on campus or attending classes, out of fear that they may encounter the perpetrator." (79) The anxiety survivors feel about facing their attacker at an on-campus event or in class has led survivors to discontinue their studies. (80)
A majority of students who experienced sexual assault or harassment on campus chose not to formally report it. (81) In fact, 87% of students who were sexually assaulted did not make a formal complaint to their university. (82) Students who did not make a formal complaint state that they chose not to because "they did not believe their experience was serious enough" to report or did not know the proper procedures for filing a formal complaint. (83) Lack of knowledge of how to file a complaint and a general lack of confidence that the institution will take corrective action remain significant barriers to reporting. (84)
A. Ways the United States Can Make Improvements
1. "Preponderance of the Evidence" Standard
In 2011, the OCR found the sexual assault statistics disturbing and were inspired to take action. (85) The Obama Dear Colleague Letter made it clear that Title IX demands colleges and universities take immediate action to eliminate sexual assault and harassment on their campuses. (86) The Obama Dear Colleague Letter outlined the guidelines colleges needed to follow in order to maintain federal funding. (87) Many have spoken out against the 2011 guidelines, deeming the guidelines too strict and unfair. (88) Critics state that colleges and universities face pressure to conduct investigations and judicial proceedings which they are ill-prepared to do. (89) Arguably, the most controversial Obama Dear Colleague Letter guideline is the requirement that colleges use the "preponderance of the evidence" standard. (90)
Opponents of the "preponderance of the evidence" standard criticize it because it brands students as sexual offenders on a more-likely-than-not basis. (91) Supporters of the standard state that despite possible long-term repercussions, the "preponderance of the evidence" standard is appropriate because campus disciplinary hearings are a civil, not a criminal, matter. (92) The "preponderance of the evidence" standard is appropriate and reasonable because it was consistently used prior to the Obama Dear Colleague Letter. (93) The preponderance standard's popularity is due to the widely held belief that using this standard appropriately balances the interests of the accused student as well as the complainant. (94) The criminal standard of "beyond a reasonable doubt" or the "clear and convincing" standard is inappropriate to use in an academic setting and was never intended to be used in such a setting. (95) The "clear and convincing" standard favors the accused student by heightening the burden of proof and thus treating the accused student's interest as more significant than the victim. (96)
2. "Clear and Convincing" Standard
The "clear and convincing evidence" standard is not aligned with the "equitable grievance procedures" intended for by Title IX. (97) The OCR's embrace of the "preponderance of the evidence" standard did not take many colleges by surprise nor affect many schools' practices, yet there was still a backlash response. (98) The minority of institutions who maintained the "clear and convincing" standard found themselves in violation of Title IX. (99) The "preponderance of the evidence" standard requires the claimant provide sufficient proof in order to establish their claim as true. (100) Despite significant evidence presented, accused students were found innocent of the claims under the "preponderance of the evidence" standard while under the "clear and convincing" standard, accused students have been found responsible. (101) Thus, it is hard to definitively say whether the choice of standard is outcome-determinative, but the "clear and convincing" standard gives the fact-finder more flexibility to hold victims to an impossible standard. (102)
Even with the fairness and popularity of the "preponderance of the evidence" standard, there is a shift towards the "clear and convincing" standard. (103) The shift away from the "preponderance of the evidence" standard is fueled by "incentives for universities to find accused students not responsible." (104) Incentives are particularly present when a student athlete is accused of harassing or assaulting a fellow student. (105) Even when the student is not an athlete, colleges face pressure to find the accused not guilty so they can avoid lawsuits and further liability. (106) Institutions want to protect their own reputation, and a finding that sexual assault has occurred on their campuses could damage a college's reputation. (107)
In 2017, Trump's Administration rescinded the Obama Dear Colleague Letter and the guidelines the letter instated. (108) This rescission has the ability to disrupt the progress many colleges have made since the Obama Dear Colleague Letter. (109) Under the interim guidelines, colleges can choose which evidentiary standard they would like to use in sexual assault investigations. (110) The Trump Administration's rescission of the mandated "preponderance of the evidence" standard was inspired by due process advocates. (111) It is expected the Trump Administration will heighten the standard to the "clear and convincing" standard. (112)
B. Ways Australia Can Make Improvements
1. The Need for Reformed Policies and Procedures
Australia's sexual assault problem is rooted in university culture and the current procedures presently in place. (113) Unlike the United States, Australia does not have a policy mandating institutions that receive federal funding to ensure equal access to higher education for all students. (114) Without a Title IX equivalent, it is up to Australian universities to guarantee safe learning environments. (115) The Human Rights Commission has identified the five areas Australian institutions need to focus on in order to rectify their sexual assault problem. (116) The five areas are: (1) "leadership and governance;" (2) "changing attitudes and behaviors;" (3) "university responses to sexual assault and sexual harassment;" (4) "monitoring and evaluation" and; (5) "residential colleges and university residences." (117)
Leadership at Australian institutions need to take charge in implementing institutional support. (118) Vice-Chancellors at Australian universities need to be vocal and visible advocates for change. (119) By advocating support for victims and showing intolerance to sexual assault and harassment, Vice-Chancellors will set a necessary example for the campus. (120) Australian universities need to engage all branches of the university, including "university senior leadership," "student body," student services, "such as: counseling services...," and "frontline sexual assault services." (121) In order for the Vice-Chancellors to successfully implement organizational structure, an advisory board is needed to develop an action plan. (122)
2. Rape Culture
Addressing the underlying attitudes towards gender roles and relationships is crucial to changing these violent behaviors. (123) Supportive attitudes of violence justifies its usage against women, excuses violence by accrediting it to external factors, and trivializes the effect of violence by minimizing its seriousness and shifting the blame from the perpetrator to the victim. (124) Changing these violent-supportive attitudes can be done through educational programs that revolve around "gender relationships, sexual ethics and healthy and respectful relationships." (125) These educational programs should be provided to students, staff and faculty of educational institutions. (126)
Universities need to collect their own data about sexual harassment and sexual assault disclosures and reports. (127) In the United States, databases of sexual assault reports and investigations at universities can be tracked online. (128) Australian universities need to collect similar data to better assess waiting periods, adequacy of the support or assistance received, and feedback provided from the complainant. (129) In conjuncture with the leadership at these institutions, the reports should be reevaluated every six months and should be audited in order to assess the university's capacity to handle investigations. (130)
The previously mentioned initiatives are applicable to Australia's thirty-nine universities. (131) The "balance of probabilities" standard is the appropriate standard that should be used to adjudicate complaints on Australia's campuses. (132) As in the United States, sexual assault is a civil not a criminal matter on university campuses in Australia. (133) The "balance of probabilities" standard is equivalent to the "preponderance of the evidence" standard used in the United States. (134) Civil rights cases in Australia are decided using a "balance of probabilities" standard, meaning it is more probable than not that the facts alleged actually occurred. (135) Australian students already face obstacles when disclosing incidents of assault and harassment; the standard of proof should not become another. (136)
Sexual violence has long existed in the shadows of society, tormenting victims yet escaping penalty. (137) Despite actions taken by the judicial and legislative branches, sexual assault continues to be a prevalent issue in the United States and Australia. (138) The causes of sexual assault and the detrimental ways society treats survivors are only promulgated by cultures that have adopted and endorsed a toxic view of masculinity. (139) The evidentiary standard used by colleges during judicial proceedings is vital to stopping sexual violence. (140) The United States remains torn between the "preponderance of the evidence" standard and the "clear and convincing evidence" standard; Australia lacks consistency in definitions and an evidentiary standard. (141) In order to successfully deter sexual violence on college campuses, the Trump Administration and the Australian government need to mandate the use of the "preponderance of the evidence" standard and reaffirm their commitment to sexual assault education. (142)
(1.) See, e.g., Statistics about sexual violence, NAT'L SEXUAL VIOLENCE RESOURCE CTR. (2015), http://www.nsvrc.org/sites/default/files/ publications_nsvrc_factsheet_me dia-packet_statistics-about-sexual-violence_0.pdf (outlining United States' sexual assault statistics). Despite high incident rates, less than ten percent of victims on college campuses report sexual assault. Id. See Justin Pope, Sexual Assault & Title IX, EDUC. WRITERS ASS'N (Feb. 2014), https://www.ewa.org/sexual-assault-title-ix (explaining prevalence of sexual assault and Obama Administration efforts to combat it). The increasing amount of incidents of sexual assault led President Barack Obama and his administration to intensify efforts to eradicate sexual assault on college campuses. Id. See also Nick Anderson & Scott Clement, / in 5 College Women Say They Were Violated, WASH. POST, June 12, 2015, http://www.washingtonpost.com/sf/local/2015/06/12/l-in-5-women-say-they-were-violated/ (affirming validity of one in five statistic). A comprehensive poll on campus sexual assault, the Post-Kaiser poll, surveyed 1,053 women and men from 500 universities. Id. The universities varied in rank, size, geographic location, and type. Id. Poll responses indicated that "5[%] of men and 20[%] of women said they had been sexually assaulted in college." Id.
(2.) See Natalie Denby, The Sexual Assault Epidemic is Real, HUFFINGTON POST, http://www.huffingtonpost.com/entry/yes-the-sexual-assault-epidemic-is-real_us_57be7905e4b06384eb3e4ae0 (last updated Aug. 29, 2016) (discussing severity of campus sexual assault). Numerous studies attest to the epidemic nature of campus assault; "the Bureau of Justice found that the prevalence of sexual assault for females in [nine] colleges was 21%. The Association of American Universities, in a separate study that surveyed 150,000 students, found that 23% of female college students had experienced unwelcome sexual contact." Id. See also NAT'L CTR. FOR INJURY PREVENTION & CONTROL, NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2010 SUMMARY REPORT 1, 24 (2010), available at https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf (describing statistics on sexual assault and domestic violence). Men are typically the perpetrators of sexual violence; the National Intimate Partner and Sexual Violence Survey reported that "[m]ost perpetrators of all forms of sexual violence against women were male." Id. at 24.
(3.) See KC Johnson & Stuart Taylor, The path to Obama's 'Dear Colleague' letter. WASH. POST, Jan. 31, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2()17/01/31/thc-path-to-obamas-dear-colleague-letter/ (noting former President Obama's initiative to enforce Title IX of Education Amendments of 1972). See also ACLU, Know Your Rights and College's Responsibilities: Title IX and Sexual Assault (2017), https://www.aclu.org/files/pdfs/womensrights/titleixandsexualas-saultknowyourrightsandyourcollege%27sresponsibilities.pdf (discussing repercussions for universities violating policies as applied to sexual assault cases). According to Title IX of the Education Amendments of 1972 (Title IX), "[a] college or university that receives federal funds may be held legally responsible when it knows about and ignores sexual harassment or assault in its programs or activities." Id. See also S. Daniel Carter, In Defense of the Title IX Dear Colleague Letter, HUFFINGTON POST (Sept. 16, 2017,10:45 PM), https://www.huffingtonpost.com/entry/in-defense-of-the-title-ix-dear-colleague-letter_us_59bddb9ae4b06b71800c3a2f (endorsing Obama's Dear Colleague Letter because it provided consistent standards). Under Obama's Dear Colleague Letter, if an institution violated an accused student's due process rights, it would be in violation of Title IX. Id. Obama's Dear Colleague Letter provided colleges with consistent standards to adjudicate sexual assault cases. Id.
(4.) See Erica L. Green & Sheryl Gay Stolberg, Campus Rape Policies Get a New Look as the Accused Get DeVos's Ear, N.Y. TIMES, July 12, 2017, https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-education-trump-can-dice-jackson.html (criticizing Obama Administration's Title IX provisions as due process violations). The Department of Education under President Donald Trump's Administration has criticized the Obama Administration's Title IX provisions as denying accused students a fair hearing. Id. Specifically, the Deputy Assistant Secretary for Strategic Operations and Outreach in the Office for Civil Rights in the Education Department, Candice Jackson, remarked that colleges drum up charges against accused students in order to make charges stick. Id. Furthermore, advocates of the accused criticized the "preponderance of the evidence" standard, demanding it be changed to a lesser standard of "clear and convincing evidence." Id. See also Matthew R. Triplett, Note, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 DUKE L.J. 487, 488 (2012) (noting difficulties of complying with Title IX). Some opponents of the Obama-era guidelines argue that the lack of guidance forces colleges either to follow the guidelines and risk due process violations or "attempt to balance victim-protection and due-process interests and risk Title IX violations for inadequate victim protection." Id. at 490.
(5.) See Alexa Lardieri, Trump Administration to Revamp Title IX, U.S. NEWS (Sept. 7, 2017, 1:46 PM), https://www.usnews.com/news/politics/articles/2017-09-07/betsy-devos-annouces-the-trump-administration-plans-to-revamp-title-ix (reporting Betsy DeVos' plans to revamp Title IX guidelines). The Trump Administration referred to the Obama-era guidelines as "ineffective and unfair to those accused of sexual assault." Id.
(6.) See Jacqueline Williams & Damien Cave, Australia Grapples with Campus Assault, and Reprisals Against Victims, N.Y. TIMES, June 21, 2017, https://www.nytimes.com/2017/06/21/world/australia/australia-land-of-bro-culture-grapples-with-campus-assaults.html (explaining growing number of Australia's sexual assault cases). Williams and Cave note United Nations' data, which supports that "Australia has some of the highest rates of reported sexual assault in the world... over the past year a steady stream of on-campus assaults, ritualized misogyny and cruel retaliation have prompted a national conversation about gender, power and accountability." Id. See also Mary Graw Lewis, Affirmatively Replacing Rape Culture with Consent Culture, 49 TEX. TECH L. REV. 1, 10 (2016) (arguing for affirmative consent). New research shows that sexual assault on college campuses occurs more frequently than previously thought. Id. There is a culture of underreporting on the part of universities, which is only exacerbating the problem. Id. For example, "[a] United States Senate Subcommittee report determined that... 40% of colleges and universities reported that they did not investigate even one sexual assault in the previous five years." Id.
(7.) See David Jesse, DeVos' Title IX proposal for investigating sexual assault is already policy at some colleges/ Hearings are traumatic for both sides, DETROIT FREE PRESS (Feb. 15, 2019), https://www.desmoinesregister.com/story/news/education/2019/02/15/department-of-education-sexual-assault-college-title-ix-betsy-devos/2849214002/ (detailing complicated nature of new Title IX proposals); Jacqueline Williams, Damien Cave & Isabella Kwai, Australian Campus Increases Sexual Assault Resources. Also: Jeff Horn Wins Again Over Manny Pacquiao, N.Y. TIMES, July 10, 2017, https://www.nytimes.com/2017/07/10/world/australia/campus-sexual-assault.html (noting similarities and differences between Australia's and United States' sexual assault problem). Australians are calling for policies similar to the United States' Title IX guidelines, but requests by students to implement such a policy have been "thwarted or delayed." Williams et al., supra.
(8.) See infra Part II (discussing Title IX's historical and statutory development).
(9.) See infra Part II (discussing Title IX's expansion into sexual assault cases on college campuses).
(10.) See infra Part III.A-B (explaining realities of sexual assault on college campuses both in United States and Australia).
(11.) See infra Part IV (arguing "preponderance of evidence" standard better route for universities globally).
(12.) See infra Part V (concluding rollback of Obama-era provisions harmful to students).
(13.) See Christine I. Helper, Symposium, A Bibliography of Title IX of The Education Amendments of 1972, 35 W. NEW ENG. L. REV. 441, 441-43 (2013) (discussing inequality in intercollegiate sports). Female students in college prior to the existence of Title IX can recall the lack of opportunity to compete in school athletics. Id. at 442. Data shows that "[prior] to the passage of Title IX, 170,000 men... [and] only 30.000 women were involved in intercollegiate athletics." Id. at 442-43. The amount of women's varsity teams increased after the promulgation of Title IX. Id. at 443. In 1972, the average number of varsity women's sports teams per college was 2.5; in 2004, there were a total of 8.32 per college. Id.
(14.) See Helper, supra note 13, at 445-46 (explaining how lack of protections for women in prior legislation led to Title IX). Title VII of Civil Rights Amendment of 1964 did not include educational institutions; "Title VI of this act prohibited discrimination on the basis of race, color, and national origin... but did not cover sex discrimination." Id. The Equal Pay Act came close to prohibiting sex discrimination but excluded professional staff and faculty from its protections. Id. at 446. See also Iram Valentin, Title IX: A Brief History, WOMEN'S EQUITY RESOURCE CTR. 1, 1-2 (1997), http://www2.edc.org/womensequity/pdffiles/t9digest.pdf (providing history of Title IX's beginnings). Executive Order 11246 originally only prohibited discrimination by federal contracts "on the basis of race, color, religion, or national origin;" the 1967 amendment, Executive Order 11375, added sex to the list. Id. at 1-2. See also Stephen Henrick, A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses, 40 N. KY. L. REV. 49, 51 (2013) (exploring how colleges' responses to sexual assault are damaging to student defendants). Since the passage of Title IX, "both [the Office of Civil Rights] and the Supreme Court... expanded Title IX's harassment prohibitions to include cases of student-to-student conduct in higher education settings." Id. See also Deborah L. Brake, Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard, 78 MONT. L. REV. 109, 109-10 (2017) (discussing debate over standards of proof used to adjudicate sexual assault cases). There is no mention of sexual assault or harassment in the text of Title IX; rather:
Title IX is a broad ban on sex-based discrimination in federally funded education programs. It says nothing about sexual harassment or sexual assault specifically, nor about any other subcategory or type of discrimination. The understanding that sexual harassment, including extreme forms of it such as rape and sexual assault, is a form of sex discrimination emerged long after the statute's enactment, largely through judicial interpretation.
Id. at 124-25 (footnotes omitted).
(15.) See Helper, supra note 13, at 446 (recounting Bernice Sandler's discrimination complaint). After Sandler was denied a faculty position, she cited Executive Order 11246, which prohibited federal contractors from discriminating on the basis of sex, to bolster her argument that sex discrimination was prohibited in education. Id. See also Michael Rosen, Note, Constitutional Implications of Title IX Compliance in Colleges and Universities, 8 CARDOZO J.L. & GENDER 503, 505 (2012) (explaining need for law to prohibit sex discrimination in education). Sandler saw the need for sex discrimination to be prohibited since the Civil Rights Act, the Equal Pay Act, and the Fourteenth Amendment to the United States Constitution failed to explicitly outlaw discrimination on the basis of gender. Id. To strike back against University of Maryland and other colleges that discriminated on the basis of sex, Sandler partnered with the director of the Office for Federal Contract Compliance at the Department of Labor and filed a formal complaint. Id. at 505-06.
(16.) See Helper, supra note 13, at 446 (explaining background of Sandler's discrimination complaint). Sandler deduced that because "most universities and colleges had federal contracts," and because Executive Order 11246 prohibited sex discrimination by federal contractors, sex discrimination also was prohibited in education. Id. See also Valentin, supra note 14, at 2 (describing Sandler's impact on Title IX). In her own words on the case, Sandler stated, "I had made the connection... that, since most universities and colleges had federal contracts, they were forbidden from discriminating in employment on the basis of sex." Id. See also Henrick, supra note 14, at 51 (discussing problems with applying Title IX to sexual assault). Title IX was not intended to encompass sexual misconduct claims. Id. at 51. "[N]othing in its legislative history" or early application indicated that Title IX was explicitly meant to include sexual harassment; it was originally intended to equalize the playing field in collegiate sports. Id. The definition of sexual discrimination was expanded to include sexual harassment. Id.
(17.) See Helper, supra note 13, at 446-47 (detailing results of Sandler's complaint); Alison Renfrew, The Building Blocks of Reform: Strengthening Office of Civil Rights to Achieve Title IX's Objectives, 117 PA. ST. L. REV. 563, 566-67 (2012) (highlighting legislative history of Title IX). In 1970, Democratic Representative Edith Green led a number of hearings before the House focused on highlighting the prevalence of sex discrimination in society. Renfrew, supra. Green followed up on these hearings with "a bill to amend Title VI of the Civil Rights Act of 1964 to include sex as a protected class." Id. at 567. Green's efforts to pass the bill failed and Green tried again to pass a sex discrimination bill during the next term. Id. Green's crusade to pass a sex discrimination bill caught the attention of Democratic Senator Birch Bayh, "who introduced a similar version in the Senate." Id. Bayh and Green's bills both failed in the House and Senate and they decided to introduce their "bills as additions to the Education Amendments of 1972." Id. Their efforts succeeded and Congress passed the bills, "now referred to as Title IX." Id. Title IX passed with little debate or contention. Id. at 567. See also Valentin, supra note 14, at 2 (giving details into politicians' efforts to pass bill). Title IX was a compromise between Representative Green and African American leaders who believed adding the bill to the Civil Rights Amendments would diminish coverage of their goals and initiatives. Id. As a compromise, Green separated the bill and named it Title IX. Id. Many personnel in edu cation were not aware of Title IX's potential scope or the affect it could have on extracurricular school activities:
Not imagining the potential impact of Title IX on athletics, when their concerns about football were allayed, higher education did not lobby for or against the bill. Sandler and the bill's other supporters did not lobby on its behalf either in order to avoid attracting adverse attention. The elementary and secondary education community remained for the most part unaware of it because it was attached to a higher education measure.
(18.) See Title IX Education Amendments of 1972, 20 U.S.C. [section] 1681(a) (1972) (quoting Title IX). See also Renfrew, supra note 17, at 567-68 (defining Title IX). In thirty-seven words, Title IX emerged and its power has only grown over the years, with noncompliance with Title IX culminating in a loss of federal funding. Id. at 573-74. See also CIVIL RIGHTS DIV., TITLE IX LEGAL MANUAL, U.S. DEP'T OF JUSTICE (2015), https://www.justice.gOv/crt/title-ix#II (discussing legislative purpose of Title IX). With the rise of the second wave women's movement, women became more visible in the workforce. Id. Conversations started happening about equality in the workforce and in education. Id. Senator Bayh spearheaded Title IX because he believed there was a link between women's employment struggles and the discrimination they face in education. Id.
(19.) See Renfrew, supra note 17, at 568 (outlining Title IX's two primary objectives). Through Title IX legislators attempted to provide equal opportunities for all students, and to punish institutions that deprive students of opportunities based on sex. Id. See also Claudia S. Lewis, Title IX of the 1972 Education Amendments: Harmonizing Its Restrictive Language with Its Broad Remedial Purpose, 51 FORDHAM L. REV. 1043, 1044 (1983) (arguing narrow interpretation of Title IX is at odds with its broad objectives). A narrow interpretation of Title IX would frustrate the statute's goals of deterring discrimination. Id. The goal of Title IX is to ensure that federal money is not used to fund discriminatory practices. Id. at 1059. Title IX's language should be interpreted to mean that whenever federal money is being directly or indirectly used, an educational institution must adhere to Title IX. Id.
(20.) See J. Brad Reich, All the [Athletes] Are Equal, but Some Are More Equal than Others: An Objective Evaluation of Title IX's Past, Present, and Recommendations for Its Future, 108 PENN. ST. L. REV. 525, 530-31 (2003) (discussing Title IX's application to intercollegiate sports). Interpretation for Title IX was inspired by how Title VI of the Civil Rights Act "prohibit[ed] race-based discrimination." Id. Title IX was modeled after Title VI and both statutes similarly tackle discrimination. Id. Due to their similarities in design and intent, many courts construe them similarly. See also David Cohen, Title IX: Beyond Equal Protection, 28 HARV. J.L. & GENDER 217, 222-23 (2005) (speculating how Title IX and Title VI cases decided similarly). Courts have looked to Title VI for guidance when deciding how to determine Title IX claims:
[T]he most common way courts and commentators compare Title IX and the Equal Protection Clause is indirectly, by comparing Title IX to Title VI. The Seventh Circuit was the first court to make this indirect comparison. In Cannon v. University of Chicago, the Seventh Circuit considered a Title IX claim of disparate impact by noting initially that the Supreme Court had previously indicated that courts should look to Title VI law when determining the proper interpretation of Title IX.
Id. See also Eleanor Murphy, No Means No: A Critical Examination of The Effectiveness of The "Yes Means Yes" Law, 39 T. JEFFERSON L. REV. 93, 97 (2017) (discussing OCR's responsibility). It is the responsibility of the Department of Education's Office for Civil Rights (OCR) to make sure colleges are in compliance with Title IX and to investigate allegations of Title IX violations. Id.
(21.) See Renfrew, supra note 17, at 570 (stating narrow interpretations frustrate legislative intent). Private litigation has been a powerful enforcement tool for Title IX because colleges and universities want to avoid litigation and the costs associated with it. Id. The idea is that because colleges want to avoid paying plaintiffs' large settlements, they will have a strong incentive to comply with Title IX provisions. Id.
(22.) See Renfrew, supra note 17, at 568-70 (explaining Court's decision to allow private causes of action and monetary damages). The Court decided monetary damages were an appropriate remedy for Title IX violations:
In Franklin v. Gwinnett County Public Schools, the Supreme Court settled an issue that remained unresolved since Cannon: the types of remedies available to plaintiffs for a private cause of action under Title IX. In Franklin, the Supreme Court unanimously held that monetary damages were available for intentional violations of Title IX. The Court noted that, when a private cause of action is recognized, the presumed rule is that all appropriate remedies are available unless Congress has indicated otherwise. Such a rule has a longstanding history in the common law as well as in the Court's jurisprudence. Additionally, the Court reasoned that monetary damages were the only suitable remedy for those Title IX claims brought by students. To hold otherwise would leave student-plaintiffs with no meaningful remedy. In its decision, the Court implicitly acknowledged that monetary damages could be useful in furthering Title IX's objectives.
Id. at 570.
(23.) See Reich, supra note 20, at 531 (explaining Title IX's application to college athletics to ensure equality). Title IX has been popularly used to ensure men and women had equal access to college athletics. Id. Title IX requires opportunities available to men and women be proportionate to the number of men and women enrolled in the undergraduate school. Id. at 532. See Brooke W. Boucek, Note, Ridding the He-Said-She-Said Dichotomy: The Deep Entanglement of Sexual Violence on College Campuses, 40 AM. J. TRIAL ADVOC. 103, 103-04 (2016) (explaining complicated nature of sexual assault on college campuses). Sexual violence on college campuses garnered media attention after an article was published in 1985 in Ms. Magazine titled, "Date Rape: The Story of an Epidemic and Those Who Deny It." Id. at 104. The article informed the country of the realities of sexual violence. Id. 'The article explained how "most sexual assaults are committed by acquaintances or friends rather than by strangers." Id. The article further states how after an incident of sexual violence, it is common for victims to blame themselves. Id. Schools struggle to balance their image for academic excellence and safety and convey to prospective students an ideal college experience. Id. The United States' awareness of the sexual violence that was occurring on college campuses was furthered by the rape and murder of college student Jeanne Clery. Id. at 105. Jeanne Clery was sexually assaulted and murdered in her college dorm room. Id. Clery's parents lobbied for a requirement that colleges disclose crime rates and security policies to the public. Id. The Clerys' efforts were successful, and in 1990, the Jeanne Clery Disclosure of Campus Securi ty Policy and Campus Crime Statistics Act, known as the Clery Act, was passed. Id. Under the Clery Act, colleges and universities are required to disclose "campus crime statistics and campus security policies." Id. The Violence Against Women Act is "the first national law treating gender violence as a crime." Id. at 106. The Clery Act was amended in 2013 by the Campus Sexual Violence Elimination Act, referred to as the Campus SaVE Act. Id. at 107. The Campus SaVE Act was designed to strengthen colleges' responses to sexual assault by requiring them to be more transparent and by mandating that schools receiving Title IX funding allocate some funds to sexual assault prevention efforts. Id. But see Brake, supra note 14, at 124-25 (2017) (discussing applicability of Title IX to rape on college campuses). Title IX has no language "about sexual harassment or sexual assault." Id. at 124. Despite the statutory text's silence on discrimination, the courts have interpreted Title IX to apply to sex discrimination. Id. at 125.
(24.) See Murphy, supra note 20, at 97-99 (discussing how Title IX's scope expanded to include sexual assault on college campuses). In 2011, "[t]he OCR published a Dear Colleague letter" to expand Title IX's jurisdiction over sexual assault cases. Id. at 97. The letter defined sexual violence as:
[P]hysical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.
Id. at 98. The intent behind defining a universal definition of sexual assault was to aid colleges in understanding their responsibilities associated with sexual assault and harassment occurring on campus. Id. This definition was aimed at giving colleges the knowledge necessary for them to take responsive action when sexual assault and harassment complaints are filed. Id.
(25.) See Murphy, supra note 20, at 98 (discussing colleges' duties and obligations). The letter outlined a college's responsibilities related to sexual violence on campus. Id. See also Russlyn Ali, Assistant Sec'y for C.R., Dear Colleague Letter, U.S. DEP'T OF EDUC. (Apr. 4, 2011), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (establishing guidelines for colleges to follow). The letter defined a college or university's requirements in dealing with sexual violence claims and stated they were:
(A) Disseminate a notice of nondiscrimination; (B) Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX; and (C) Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints.
Id. at 6 (footnotes omitted). 'The Obama Dear Colleague Letter reiterated that colleges must ensure their policies and procedures relating to sexual violence meet the requirements established in the letter. Id. See also Joe Dryden et at. Title IX Violations Arising from Title IX Investigations: The Snake Is Eating Its Own Tail, 53 IDAHO L. REV. 639, 649 (2017) (discussing rate of sexual assault on campuses). The number of sexual assault claims on college campuses is not decreasing. Id. Colleges have a duty to ensure due process is upheld during all proceedings; unfortunately, however, "the criminal justice system has a poor track record when it comes to protecting victims of sexual assault." Id. at 650-51. See also Amy Chmielewski, Defending the Preponderance of the Evidence Standard in College Adjudications of Sexual Assault, 2013 B.Y.U. EDUC. & L.J. 143, 146 (2013) (outlining differing perspectives of "preponderance of evidence" standard). Title IX, the extension of Title V, serves as an enforcement tool because it aims to force schools to respond to sexual assault complaints and forces them to refrain from acting in discriminatory ways. Id. at 151. Advocates for the preponderance of evidence standard state that higher standards are not suitable with civil complaints because a higher standard is not typically used to adjudicate civil rights violations. Id. at 155-56.
(26.) See Ali, supra note 25, at 6-14 (detailing colleges' requirements for battling sexual assault). Under the Obama Dear Colleague Letter, the OCR was charged with examining colleges' procedures to assess whether they were using a "preponderance of the evidence" standard to adjudicate complaints. Id. at 10. Colleges have a responsibility to investigate sexual misconduct claims and to do so promptly. Id. The federal government has taken steps to combat sexual misconduct on college campuses by enforcing Title IX. Id. at 1. A "preponderance of the evidence" standard "has [been] applied [by the U.S. Supreme Court]... in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964" and the OCR has applied it "when it resolves complaints against recipients." Id. at 10-11.
(27.) See Ali, supra note 25, at 10-11 (finding Supreme Court's interpretation of Title VII persuasive in interpreting Title IX); Brake, supra note 14, at 126 (discussing "preponderance of evidence" standard adopted in Obama Dear Colleague Letter). The "preponderance of the evidence" standard announced in the Obama Dear Colleague Letter "reflects the poor record colleges and universities have in handling sexual assault allegations." Brake, supra, at 128. Colleges use different models for investigating sexual assault claims, but "most institutions use the same process for resolving allegations of student sexual harassment and sexual assault that they use for other kinds of student misconduct." Id. at 127. Some colleges use a hearing board to assess evidence, while others have some investigators that gather evidence. Id. See also Erica Coray, Victim Protection or Revictimization: Should College Disciplinary Boards Handle Sexual Assault Claims?, 36 B.C. J.L. & Soc. JUST. 59, 88 (2016) (arguing law enforcement involve itself in campus response procedures). Law enforcement must work as liaisons "directly with schools when a student reports a sexual assault." Id. The Obama Dear Colleague Letter provides guidelines for how schools should comply with Title IX and encouraged schools to enact preventative measures. Id. at 67-69. Additionally, the Obama Dear Colleague Letter notes that "the involvement of law enforcement does not abrogate a school of its duty to carry out its own independent investigation." Id. at 68.
(28.) See AUSTL. HUM. RTS. COMM'N, CHANGE THE COURSE: NATIONAL REPORT ON SEXUAL ASSAULT AND SEXUAL HARASSMENT AT AUSTRALIAN UNIVERSITIES 1, 21 (2017), https://www.humanrights.gov.au/sites/default/files/document/publication/AHRC_2017_ChangeTheCourse_UniversityReport.pdf (reporting on Australia's sexual assault problem). The report states that "[a]round half of all university students were sexually harassed on at least one occasion in 2016, and 6.9% of students were assaulted on at least one occasion in 2015 or 2016." Id. at 3. The report clearly states that Australian women are sexually assaulted and harassed at "disproportionately higher rates than men...." Id. at 4. Data reports that a "majority of students who were sexually harassed said the perpetrator was male." Id. at 47. Previous existing research states that:
[W]omen aged between [eighteen] and [twenty-four] experience sexual assault and sexual harassment at disproportionate rates. Since the age of [fifteen], one in five women, and one in [twenty-two] men in Australia have experienced sexual violence. Young women aged between [eighteen] and [twenty-four]--the age group of a significant cohort of university students--experience sexual violence at over twice the national rate. [Eighteen] to [twenty-four] year old women are also more likely than men in this age group to have experienced sexual harassment in the workplace.
Id. at 4. See Gay Alcorn, 'Perverse outcomes': How Australia is failing sexual harassment victims, GUARDIAN (Oct. 17, 2017), https://www.theguardian.com/world/2017/oct/18/kate-jenkins-on-how-australia-is-failing-sexual-harassment-victims (highlighting long-term problem of sexual harassment in Australia). The uprising of the American "Me Too" movement has inspired Australian men and women to speak out about their own experiences with sexual assault and harassment. Id. Australian data on the prevalence of sexual assault and harassment is limited but growing; this includes the Australian Human Rights Commission surveys. Id. Despite Australia's existing laws, such as the Sex Discrimination Act criminalizing sexual harassment, the reality is that not much progress has been made to curb it. Id.
(29.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 4 (discussing number of formal reports made). The majority of students who experienced sexual assault or harassment did not make a formal complaint to the university. Id. at 9. This report notes that "underreporting of sexual assault and sexual harassment makes it difficult for universities" or colleges to create appropriate responses. Id. at 5. See also Alcorn, supra note 28 (explaining cost of making formal complaints). The cost of making a formal complaint can be high; a victim's career or reputation can be jeopardized. Id. The existing culture and attitudes towards sexual assault and harassment serves as a deterrent. Id.
(30.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 3 (discussing sexual assault and harassment statistics). A university setting means the incident occurred physically on campus, traveling to or from campus, "at an off-campus event organized or endorsed by the university, and at university employment." Id. Technology based harassment is included as occurring in a university setting in instances, "where some or all of the assailants were students, teachers" or staff at the university. Id. See also Adair Donaldson, Australia has a sexual assault problem. We need to stop looking the other way, ABC NEWS (Aug. 1, 2017), http://www.abc.net.au/news/2017-08-01/australia-has-a-sexual-assault-problem-we-cant-ignore/8764220 (highlighting severity of sexual assault problem on Australian campuses). The Australian Human Rights Commission's findings provided the world with insight into how severe and frequent instances of assault and harassment are on campuses. Id. The survey detailed that most instances of sexual assault on campuses occurred at a university residence or social event, university libraries, or some other university setting. Id. The fact that these crimes occur on campus only solidifies what was already suspected--these incidents are happening on Australian universities' campuses. Id. Australian universities need to review their current policies and procedures and consider whether their current policies satisfy the due care they owe to their students. Id.
(31.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 47, 54 (explaining gender of perpetrators of sexual assault and harassment). A substantial number of sexual assault incidents were perpetrated by a person known to the victim. Id. at 53-54. Universities need "to prevent sexual assault and sexual harassment and to ensure they respond appropriately to support victims and hold perpetrators accountable in situations where both are associated with the same university and are likely to attend the same campus, classes, or social events." Id. at 7. Approximately 50% of all students who reported sexual assault knew their assailants; in these instances, 71% of students who were sexually harassed and 83% of students who were sexually assaulted in a university setting said the perpetrator in "the most recent incident was male." Id. at 7. See also Laws around consent. LINE, https://www.theline.org.au/laws-around-consent (last visited Apr. 1, 2018) (explaining consent and noting consent laws different in each Australian territory). How power is distributed in a relationship may affect the legality of the sexual relationship. Id. See also AUSTRALIAN INST, OF FAM., Age of consent laws (July 2017), https://aifs.gov.au/cfca/publications/age-consent-laws (providing information regarding consent laws in different Australian territories). The Australian Capital Territory states that consent cannot be given by anyone under the age of sixteen. Id. When a person turns sixteen, they may have sex with another sixteen-year-old if both consent. Id. The Australian Capital Territory states that agreement to sex does not mean mere submissiveness. Id. If there is evidence of coercion, consent is unlawful. Id.
(32.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 1 (discussing limited data available prior to report). All thirty-nine Australian universities requested the Australian Human Rights Commission to gather data on the problem of sexual assault and harassment that has affected each of their campuses. Id. These universities were inspired by the recent spark of sexual assault advocacy in the United States and United Kingdom. Id. Australian universities expressed a desire to understand the extent to which rape culture permeates their campuses. Id. The results from this report reflect that there are "unacceptably high levels of sexual violence in the broader Australian community." Id. See also Anna Hush & Nina Funnell, Australian universities are failing sexual assault survivors. It has to change, GUARDIAN (June 21, 2017), https://www.theguardian.com/commentisfree/2017/jun/21/australian-universities-are-failing-sexual-assault-survivors-it-has-to-change (discussing how End Rape on Campus Australia called on universities to take action). Prior to the release of the final report, End Rape on Campus Australia expected to receive an immediate increase in disclosures. Id. End Rape on Campus Australia was concerned that Australian universities did not have proper procedures and policies in place to support victims stepping forward. Id. Universities' responses to the report were bureaucratic. Id. No community of care exists at universities and this contributes to a student-victim's feeling of betrayal. Id. Two thousand people signed a petition advocating for universities to implement a telephone-based counseling service. Id. Despite the petition, universities neither responded nor allocated additional funding to the frontline services needed to respond to the fallout. Id.
(33.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 127-38 (explaining reasons why sexual assault underreported). The three significant findings of this report are that: (1) sexual assault and harassment occur often in university settings similar to what is experienced in the broader community; (2) there is overwhelming evidence that indicates students underreport; and (3) universities must take more action to promote respect, support victims of sexual abuse, and prevent sexual abuse from occurring. Id. at 1. See also AUSTL. WOMEN AGAINST VIOLENCE ALLIANCE, SEXUAL VIOLENCE: LAW REFORM AND ACCESS TO JUSTICE 1, 12-16 (May 17, 2017) [hereinafter LAW REFORM AND ACCESS TO JUSTICE] (explaining how institutional reform can provide victims better resources). Systemic issues exist in the criminal justice system that contribute to underreporting. Id. at 12, 17. How sexual offences are treated in the Australian justice system are "often said to epitomise the justice system's inherent bias against women." Id. The reasoning for this inherent bias is that the justice system buys into stereotypes "and biases about women, children, men, sexual violence, and sexual relationships." Id. This belief that runs rampant in the Australian justice system contributes to underreporting. Id. at 16. The cultural attitudes towards the justice system and what happens in the courtroom also contribute to underreporting. Id. at 12. The public tends to focus on the aggressive cross-examinations and what actually happened, instead of focusing on the impact on the victim. Id. What is required of victims during the course of a trial also serves as a deterrent. Id. During the course of a trial, a victim often needs to "retell and therefore relive the trauma." Id.
(34.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 119 (discussing barriers to reporting at universities). It is apparent that students face barriers to reporting that are "both structural and attitudinal;" for example, "[o]nly 2% of students who experienced sexual harassment in a university setting in 2015 or 2016 said that they had made a formal report or complaint to the university in relation to the most recent incident." Id. See also LAW REFORM AND ACCESS TO JUSTICE, supra note 33, at 15-18 (explaining how Australian criminal justice system and attitudes towards trials serves as barrier to reporting). Victims have stated that testifying and giving evidence is a "humiliating, degrading, and manipulative" experience. Id. at 12. An additional deterrent is the responsibility that is placed upon the prosecution to establish the victim's credibility. Id. The types of reforms in response to these systemic problems is to expand the definition of rape and to shift attention away from the character of the victim and towards behavior of the offenders. Id. at 13.
(35.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 119-27 (describing where survivors typically seek support). Students were unlikely to seek support from their schools after an experience of sexual assault or harassment. Id. at 121. Women, however, were more likely to seek support from their institution than men. Id. Most students attend student services to seek help and support after their experiences. Id. at 118. Students underreport sexual harassment, the report indicated that:
Regarding sexual harassment, 68% of students who did not report said that they did not think their experience was serious enough to report and 53% did not think they needed help. Other common reasons students cited for not reporting their experience included: they did not know to whom to report (16%); they did not know how to report (12%); [or,] they thought that the incident would be too hard to prove (11%).
Id. at 127.
(36.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 127 (describing different reasons for victims not reporting incidents of sexual violence). Among the many reasons why students don't report, students interviewed stated they didn't report because "they thought it would be too difficult to prove," didn't want to cause trouble, or "worried they wouldn't be believed." Id. at 129, 139-41. There is also a sense of shame students felt that made them feel too embarrassed to report their experience. Id. at 130. See also Calla Wahlquist, Campus sexual assault prevention 'inadequate at Australian universities,' GUARDIAN (Feb. 18, 2018), https://www.theguardian.com/so-ciety/2018/feb/19/campus-sexual-assault-prevention-inadequate-at-australian-universities (discussing inadequate responses to sexual assault on campuses). Since the Australian Human Rights Commission's report was published, students are more aware of the problem that is occurring on their campus. Id. Campuses do conduct online training; however, there is no substitute for face-to-face training about sexual assault and the meaning of consent. Id. The hope is that students will encourage victims to come forward about their experiences and demand universities do more to prevent these crimes from occurring. Id.
(37.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 158-59 (discussing attitudes toward sexual assault and women). Attitudes about gender roles are contributing factors leading to the sexual assault and harassment women experience on campuses. Id. at 158. Submissions to the Commission slated that university professors are often male and tend to dismiss or talk down to women. Id. at 159. Many students came forward to the Commission and stated that there was an ongoing "culture at their university of sexualising or objectifying women." Id. at 160. Students came forward and stated that women were treated as inferior, and a conceptual cultural shift needs to occur where there is less emphasis on female sexuality and appearance. Id. See also Anonymous, How the justice system lets sexual assault victims down, ABC NEWS (Sept. 2, 2016, 7:51 PM), http://www.abc.net.au/news/2016-09-02/brock-turner-justice-system-sexual-assault-victims/7801784 (stating Australia's sexual assault problem deserves as much attention as America's sexual assault problem). There is a victim blaming culture in Australia. Id. A stigma exists around sexual assault that stifles discussion about the ideas and normalized behaviors that contribute to sexual assault occurring in the first place. Id. There is a widely held belief that women are responsible for being assaulted. Id. The Australian legal system also eontributes to this dangerous rhetoric. Id.
(38.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 159-63 (discussing victim blaming on Australia's campuses). There is a common conception on university campuses that the victim is partly to blame for what occurred to them or that the victim asked for it. Id. at 161. Victim blaming serves as a barrier to reporting. Id. See also Williams & Cave, supra note 6 (highlighting backlash victims face after coming forward). Australia's "hypermasculine" culture leads to horrendous backlash and retaliation against victims who come forward. Id. Although Australia has one "of the highest rates of reported sexual assault in the world," universities are slow to implement measures to protect students. Id. A January 2017 report by End Rape on Campus Australia found that most universities did not support sexual assault victims and even made efforts to cover up sexual crimes to maintain their reputations. Id. Despite Australian universities' recent efforts to curb sexual assault, many students doubt the universities' commitment to sexual assault prevention. Id.
(39.) See Hayley Boxall, Adam Tomison & Shann Hulme, Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788-2013, AUSTRALIAN INST. CRIMINOLOGY 1 (2014), available at https://aic.gov.au/publications/special/007 (laying out history of sexual violence legislation in Australia). Sexual violence emerged as an issue due to public awareness of child abuse in the 1900s. Id. at 5-6. The rise of the women's movement contributed to public awareness of sexual violence. Id. at 9. See also Preventing Violence Against Women: An Australian Timeline 1970-2015, VICHEALTH (July 2015), https://www.vichealth.vic.gov.aU/-/media/ResourceCentre/PublicationsandResources/PVAW/2015-PVAW-Timeline_WEB.pdf?la=en&hash=108BFD7D2DF47F954684BEFE60E185F3A0C08757 (detailing Australia's history of sexual assault prevention). It was not until the 1970s that preventing violence against women was at the forefront of discussion and debate. Id. The First Women's Liberation conference happened in Melbourne in 1970. Id. This conference pinpointed "violence against women as a priority area." Id. See also The Royal Commission Research Project: Historical review of sexual offence and child sexual abuse legislation in Australia: 1788-2013, TRUTH JUST. HEALING COUNCIL 1 (2014) (addressing key moments in sexual violence legislation). Australia's legislative history on sexual violence begins with crimes against children. Id. at 1. During the eighteenth century, Australia didn't recognize "childhood." Id. Children were treated as adults and "seen as an extension of [their] parents." Id. Laws that existed prohibited "forced sodomy of boys" and "forcible rape of girls under the age of ten years old." Id. During the beginning of the twentieth century, Sigmund Freud's works initially aided the Australian community's understanding of sexual assault and the trauma that accompanies it. Id. at 2. Freud noticed that much of the trauma his female patients were dealing with was caused by "inappropriate sexual relations with adults during childhood." Id. Due to pressure from his peers, Freud published work contradicting those findings. Id. In the early 1930s, Sandor Ferenzi began releasing his research, which shed light on the intense trauma that childhood sexual abuse inflicts on victims. Id. at 3. Like Freud, Ferenzi was pressured to retract these findings; however, he refused to do so. Id. When Ferenzi died in 1933, the psychoanalyst community suppressed his findings. Id. In the latter half of the twentieth century, the Australian community became more aware of childhood sex abuse. Id. During the 1970s and 1980s, all Australian territories made "significant amendments to their sexual offense" and child abuse laws. Id. All the Australian territories altered the "use of gendered language," the definition of sexual intercourse, and criminalized offences where perpetrators are "in a position of authority or trust." Id. at 4.
(40.) See Boxall, Tomison & Hulme, supra note 39, at 9 (discussing rise of women's movement). Until the 1970s, sexual violence, specifically against children, was often "minimized and denied." Id. Despite the denials of these crimes by the public, "independent research continued to confirm rather than deny the he frequent occurrence of the event." Id. See also Rape in marriage: Why was it so hard to criminalise sexual violence?, AUSTRALIAN WOMEN'S HIST. NETWORK (Dec. 7, 2016), http://www.auswhn.org.au/blog/marital-rape/ (discussing campaign to criminalize marital rape in Australia in 1970s and 1980s). During the late 1970s, many Australian territories created legislative reforms to existing sexual assault laws, including "expand[ing] the definitions of rape... and reconsidering] the treatment of victims on the stand." Id. Amidst the feminist movement and sexual revolution, these "reforms were broadly welcomed." Id.
(41.) See Boxall, Tomison & Hulme, supra note 39, at 9 (highlighting emergence of sexual assault awareness in Australia). Between the 1970s and 1980s, all Australian territories began amending their laws to reflect society's views on sexual crimes. Id. at 10. See also Rape in marriage: Why was it so hard to criminalise sexual violence?, supra note 40 (discussing rise of Australian feminist movement in 1970s). The feminist movement that occurred in the 1970s stirred up discussion on women's rights and was a catalyst for broader conversations about ways to reform the legal system to reflect and protect the modern woman's place in society. Id. The feminist movement was felt in the media and in the government. Id. One of the biggest changes to occur in law during the 1970s was the criminalization of marital rape. Id. South Australia was one of the first territories to criminalize marital rape. Id. The then-Attorney General stated, "a woman should have protection of the criminal law regardless of whether she was married, unmarried, living with the spouse or not." Id.
(42.) See Boxall, Tomison & Hulme, supra note 39, at 21 (discussing 1980s legislation). The 1980s ushered in mandatory reporting laws in Australia. Id. Mandatory reporting laws typically required that "'prescribed' persons who had reasonable grounds for suspecting that a child had suffered physical injury (otherwise than by accident) or had been sexually abused, to make a report to the youth advocate." Id. During this time period, some territories expanded the definition of sexual intercourse to include nonpenetrative acts. Id. at 19. See also Preventing Violence Against Women, supra note 39 (detailing key legislation occurred in 1980s). During the 1980s, Australia passed a number of important initiatives that sought to protect women both at the territorial level and federal level. Id. In 1984, the Victorian territory passed the "Equal Opportunity Act and Federal Sex Discrimination Act." Id. Two years later, the Federal Human Rights and Equal Opportunity Commission was established. Id.
(43.) See Boxall, Tomison & Hulme, supra note 39, at 30 (describing how gendered language only allowed charges brought against men). Despite the constricting language in legislation, there is an exception that recognizes that men can be victims of indecent assault. Id. The then-legislative language in relation to sexual assault was narrow and stated the crime
was proven when there was evidence of penetration. Id. Subsequent revisions "expand[ed] the definition of sexual intercourse" and "was again revised by substituting the term 'vagina' for the more generic term 'genitalia.'" Id. at 20. See also Cindy Tarczon & Antonia Quadara, The nature and extent of sexual assault and abuse in Australia, AUSTL. CTR. FOR STUDY OF SEXUAL ASSAULT 1, 3 (Dec. 2012), https://aifs.gov.au/sites/default/files/publication-documents/rs5.pdf (discussing how data about sexual assault is gathered in Australia). In Australia, there is no "uniform definition" of sexual assault. Id. The definition of sexual assault depends on the jurisdiction. Id.
(44.) See Boxall, Tomison & Hulme, supra note 39, at 30, 38 (outlining Australia's legislative history and attempts to eradicate gendered language in legislation). Most territories in Australia have reduced or completely eliminated gendered language to avoid stereotyping this crime. Id. at 19. See also Preventing Violence Against Women, supra note 39 (outlining historical legislative moments in Australia including elimination of gendered language). The elimination of gendered language coincided with the emergence of other initiatives to combat sexual assault and attempt to have fair trials. Id. The Australian territory of Victoria is one territory that passed many Acts which sought to provide support to victims of sexual assault. Id. But see Nino Bucci, Sexual offence law overhaul to address victim injustices, AGE (Oct. 2018), https://www.theage.com.au/national/victoria/sexual-offence-law-overhaul-to-address-victim-injustices-20150629-gi0ml5.html (reporting government review found Victoria's sexual offense laws too vague). Victoria's sexual assault laws have been found to be "complex, inconsistent and unclear." Id. One of the main legal issues was the vagueness of the definition of consent, making interpretation by judges difficult. Id. From 2010 to 2013, this resulted in fifteen rape convictions being overturned on appeal as a result of jury instructions wrongly interpreting consent. Id. One of the new laws seeks to prosecute repeat offenders. Id.
(45.) See Williams & Cave, supra note 6 (stating how Australia has a national sexual assault problem). See also Bianca Fileborn, Sexual assault laws in Australia, AUSTRALIAN INST, OF FAM. STUD. 1-2 (2011) (outlining sexual assault problems in most jurisdictions in Australia). Sexual assault offenses in Australia are difficult to prosecute and "[e]ach jurisdiction in Australia has its own legislation for sexual offenses." Id. at 1. Each territory has a unique definition of rape, consent, and sexual assault. Id. Multiple studies have found that 85% of sexual assault cases do not "come to the attention of the criminal justice system, only a small proportion proceed to trial." Id. See also Stephanie Anderson, Sexual Assault: What action is being taken?, SBS NEWS (Aug. 19, 2015), https://www.sbs.com.au/news/sexual-assault-what-action-is-being-taken (questioning reform measures). Different territories have undertaken new measures to create specialized domestic violence courts, and "[a]t the national level, state and territory governments are working to ensure offenders are held to the same standards across the country." Id. See generally Stephanie Anderson, Sexual Assault: How common is it in Australia?, SBS NEWS (Aug. 23, 2015), https://www.sbs.com.au/news/sexual-assault-how-common-is-it-in-australia (discussing how Australia's sexual assault problem is one of worst in world).
(46.) See Are Sexual Assault Offenders in Australia Getting off Too Lightly?, LY LAWYERS BLOC (Aug. 24, 2015), https://lylawyers.com.au/are-sexual-assault-offenders-in-australia-getting-off-too-lightly/ [hereinafter Sexual Assault Offenders] (finding sexual assault offenders given light sentences). In 2015, the Judicial Commission of New South Wales' statistics found "that more than 50% of all offenders guilty of [s]exual [a]ssault [offenses]... were sentenced to a term of imprisonment of [two] years or less (non-parole period)." Id. The fact that perpetrators are given low sentences serves as a deterrent to reporting because victims do not want to endure the stress of a trial only for the guilty perpetrator to be given a light sentence. Id. In 2015, the Australian Institute of Criminology "estimate[d] 70[%] of sexual assault incidents... [were] not reported to police." Id. This is astounding given the fact that "[a]ccording the [United Nations], Australia has the 'highest rates of reported sexual assaults in the world,'... [m]ore than double the average reported worldwide." Id. The justice system is a deterrent to reporting. Id. In addition to general "distrust in the legal system," many victims do not report because under the law, "it is very hard to meet the extensive requirements for proof." Id. Another factor that contributes to underreporting is the identity of the perpetrator. Id. If the victim of the assault knew the perpetrator, it is likely the victim will not come forward for fear of retribution. Id. The burden of proving rape happened falls on the victim. Id. The victim has to provide the government evidence that he or she had sex with another individual and they did not consent to having sex. Id. Typically, there are no witnesses, which leaves the victim with the burden of taking the stand and recounting their ordeal. Id. See also Denise Lievore, Victim Credibility in Adult Sexual Assault Cases, AUSTRALIAN INST. CRIMINOLOGY 1, 4 (2004) (explaining what makes victim credible or not). Prosecutors state that "they rarely force... [a victim] to give evidence" because of the trauma that can reoccur. Id. at 3. In a case where there are no witnesses or little evidence, victim credibility is paramount. Id. at 1. The most important factor in determining credibility was "consistency in... [the victim's] statements at various times" and in the victim's "post-assault behaviour." Id. at 4.
(47.) See Tarczon & Quadara, supra note 43, 1-2 (highlighting two main ways data gets collected in Australia). The two main types of data collection are administrative data and victimization survey data. Id. at 1. Administrative data is "data extracted through the various systems," and victimization survey data is "data collated from surveys" of the public. Id. Administrative data can include police data and statistics that stem from that data. Id. The victimization data is formed from interviews inquiring "about their experiences of sexual assault victimisation, regardless of whether they have reported to police." Id.
(48.) See Boxall, Tomison & Hulme, supra note 39, at 9-10 (describing how state governments evolved to understand sexual violence). See also Tarczon & Quadara, supra note 43 (describing Australia's attempts to reform sexual assault policies). Data has been collected summarizing the available information about the "nature and extent of sexual assault and abuse in Australia." Id. See also Kerstin Braun, Legal Representation for Sexual Assault Victims--Possibilities for Law Reform?, 25 CURRENT ISSUES CRIM. JUST. 819, 820 (2014), http://www.austlii.edu.au/au/journals/CICrimJust/2014/6.pdf (considering ways to reform Australian legal system). Many reformative measures have been undertaken in Australia to rectify the low reporting rates. Id. at 819. Despite the different measures taken, the reporting rates have remained low. Id. at 820. Recent measures have been focused on reshaping society's idea of consent and shifting focus away from the victim's character. Id. at 819. Many scholars have also pondered amending the legal system in order to increase conviction rates. Id. at 820. One recommendation is to give sexual assault victims the right to have "victims' advisers and support persons" present while they testify. Id. at 823-24. See also Shane Don, The Legal System in Australia: The Inadequacy of Incarceration for Sexual Assault Perpetrators, EMPOWERED TOGETHER: BLOG (Dec. 13, 2017, 8:14 AM), https://www.empoweredtogether.com.au/the-legal-system-in-australia/ (criticizing lenient sentencing for sexual assault perpetrators). Despite the various measures, Victoria has undertaken to prevent sexual assault; however, "99[ ;%]of sexual assault and rape offenses escape criminal conviction," and "[t]he maximum sentence for sexual assault [conviction is]... [ten] years... while the penalty for rape is held at a [twenty-five]-year maximum." Id. A maximum sentence is a rarity, "as evidence in Victoria where the maximum length of imprisonment imposed from 2011 to 2016 was [fifteen] years." Id. In the past four years, in the territory of Queensland, only one individual received the maximum allowed sentence. Id.
(49.) See Boxall, Tomison & Hulme, supra note 39, 9-12 (talking about reforms and trends attempted by Australian government). Since the 1970s, Australia has attempted to pass policy and change societal attitudes about sexual assault Id. at 9. The government became aware of the problem of sexual violence due to studies detailing child sex abuse in Australia. Id. at 9. The government amended the age of consent laws in Australian territories and introduced child pornography laws. Id al 20. See also Braun, supra note 48, at 826-30 (advocating for legal representation for sexual assault victims). Like "most common law jurisdictions," unless a sexual assault victim is testifying, victims "cannot present views or concerns" to the tribunal. Id. at 820. Advocates state that their inability to express their views during the main trial is one reason victims should be entitled to legal representation. Id. at 821.
(50.) See Reporting on Sexual Violence, OUR WATCH 1, 1-7 (Sept. 2014), https://www.ourwatch.org.au/MediaLibraries/OurWatch/Images/ourwatch_reporting_on_sexual_violence_aa_vl.pdf [hereinafter Reporting on Sexual Violence] (describing effects sexual assault has on victims). Victims of sexual assault face "a number of short- and long-term impacts on the survivor's physical health, including: injury; pain disorders; disturbed sleep; infections; gastrointestinal problems; sexual and reproductive health issues (including STIs); headaches; and some kinds of chronic diseases." Id. at 7. A victim's mental and emotional health are also affected by sexual violence. Id. "Anxiety and intense fear are the most common emotional responses" in response to sexual violence. Id. Survivors also grapple with depression and post-traumatic stress disorder. Id.
(51.) See Reporting on Sexual Violence, supra note 50, at 9 (discussing ways government attempted to prevent sexual violence and effects). The government has focused its legislation on defining the scope of consent and addressing coercion absent physical force. Id. Marital rape was not recognized in every Australian territory until the 1990s. Id. at 9 n.20.
(52.) See Reporting on Sexual Violence, supra note 50, at 9 (stating sexual violence cases are difficult to prosecute). The government finds it "very hard to prove beyond a reasonable doubt that sexual violence occurred." Id. It is a difficult crime to prove because there is often a lack of evidence, and "it usually comes [down] to one person's words against another's." Id. Cf. Lievore, supra note 46, at 1 (discussing importance of victim credibility). Sexual crimes are hard to prove because there typically are no witnesses and defendant may concede that sex occurred. Id. The burden is placed on the victim and prosecution to prove that it was nonconsensual. Id.
(53.) See Djuna Perkins, Behind the Headlines: An Insider's Guide to Title IX and the Student Discipline Process for Campus Sexual Assaults, 59 Bos. B.J. 19, 20 (2015) (explaining different requirements and recommendations Obama Administration imposed on schools regarding sexual misconduct complaints). In addition to the Obama Dear Colleague Letter, in 2014, the White House Task Force published a report titled, "Not Alone." Id. "Not Alone" signified an approval of the single investigator model, which meant "a single investigator--whether an employee or outside consultant, lawyer or nonlawyer--gathers all the evidence, questions witnesses, and issues findings and conclusions." Id.
(54.) See Wendy Perkins & Jessica Warner, Sexual Violence Response and Prevention: Studies of Campus Policies and Practices, 16 J. OF SCH. VIOLENCE 237, 238 (2017) (explaining inconsistency in language among universities). There is also variation among universities' responses and reporting protocols. Id. See also REPORT OF COMPLAINTS OF SEXUAL MISCONDUCT BROUGHT FORWARD FROM JAN. 1, 2017 THROUGH JUN. 30, 2017, YALE UNIV. 1, 15 (2017), http://provost.yale.edu/sites/de-fault/files/files/August%202017%20Report.pdf (defining sexual assault and parameters of consent). Yale University defines sexual assault as "any kind of nonconsensual sexual contact, including rape, groping, sexual penetration (which is the insertion of a penis, finger or object into another person's vagina or anus), or any other nonconsensual sexual touching." Id. at 15. Yale's definition of sexual assault also includes that: "[s]exual activity also requires affirmative consent, which is defined as positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter. Consent cannot be inferred from the absence of a 'no'; a clear 'yes,' verbal or otherwise, is necessary." Id. See also SEXUAL AND GENDER-BASED HARASSMENT POLICY AND PROCEDURES FOR THE FACULTY OF ARTS AND SCIENCES HARVARD UNIVERSITY, HARV. UNIV. 1, 4-5 (2015), http://www.fas.harvard.edu/files/fas/files/sexual_and_gender-based_harassment_policy_and_proce dures_for_the_fas_.pdf (explaining Harvard's sexual assault definitions). Harvard University more vaguely defines sexual assault as, "unwelcome conduct of sexual nature," and further defines unwelcome conduct as, "if a person (1) did not request or invite it and (2) regarded the unrequested or uninvited conduct as undesirable or offensive." Id. at 5.
(55.) See Perkins, supra note 54, at 238-39 (discussing how detrimental vague definitions are to reporting in school environments).
(56.) See Perkins, supra note 54, at 238 (discussing how vague definitions can lead to confusion). Critics argue that some colleges definitions of sexual assault are "often vague or incomplete." Id. According to Weiss and Lasky this vagueness can lead to uncertainty amongst students on what is and what is not reportable behavior. Id. at 239. See also Fran Danis, et al., Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students, 55 J. AM. C. HEALTH 159, 159-60 (2006) (reporting students felt embarrassed to come forward or distrustful in system). Some barriers to reporting include lack of available services, lack of knowledge about how to get help, and shame and embarrassment. Id.
(57.) See Blair A. Baker, When Campus Sexual Misconduct Policies Violate Due Process Rights, 26 CORNELL J.L. & PUB. POL'Y 533, 546 (2017) (addressing flexibility of university to decide judicial process and due process concerns). Regarding procedures, "[u]niversities decide whether to hold a hearing, who will oversee the hearing, and who will serve as decision-makers. Hearing panels oftentimes include university administrators, whose job stability could likely depend on their reaching the decision most convenient and politically appropriate for the university." Id. In situations where universities do not appoint a hearing panel to review cases, they assign one official as "both investigator and decision-maker." Id. See also Kelly Alison Behre, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys, 65 DRAKE L. REV. 293, 317 (2017) (detailing effects of sexual assault on college campuses). How a college responds to a sexual assault incident can "directly impact a victim's mental health" and whether that student feels comfortable continuing their education. Id. at 319-20. University disciplinary proceedings differ from college to college, but a "majority used a preponderance of the evidence standard for their hearings prior to the increased scrutiny on sexual misconduct cases." Id. at 321. See also ALI, supra note 25, at 1 (providing definition of sexual violence). The Obama Dear Colleague Letter defined sexual violence as:
[P]hysical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.
Id. at 1-2. See also Amy Rock, Dept. of Ed. Publishes Database of Pending Civil Rights Investigation, CAMPUS SAFETY NEWS (Jan. 19, 2018), https://www.campus-safetymagazine.com/university/dept-ed-civil-rights-database/ (discussing Department of Education published list of schools with pending Title IX investigations). Many critics of Obama Dear Colleague Letter state the publication of the list is an example of the overregulation schools were facing under Obama Administration. Id.
(58.) See Chris Loschiavo & Jennifer L. Waller, The Preponderance of Evidence Standard: Use in Higher Education Campus Conduct Processes, ASS.'N FOR STUDENT CONDUCT ADMIN. (2014) (discussing lack of evidentiary rules in campus disciplinary hearings). Colleges and universities do not have the same abilities as the court system; "[a college] cannot compel or subpoena a witness to participate in the campus conduct process." Id. See also Matthew R. Triplett, Note, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 DUKE L.J. 487, 501, 524 (2012) (discussing how lack of uniform rules can negatively impact defendants). In campus adjudication proceedings, the lack of evidentiary rules can lead to defendant's unpreparedness. Id. at 523.
(59.) See Triplett, supra note 58, at 523 (stating lack of evidentiary rules creates confusion for both victims and student-defendants). Critics of the campus judicial process state, "one problem that has emerged in many campus hearings has been the inability of the accused student to access relevant evidence to build an effective defense." Id. at 523. However, the Obama Dear Colleague Letter states the victim must give the "accused... access to the evidence that will be presented at the hearing." Id. at 524. See also Henrick, supra note 14, at 85 (arguing lack of evidentiary rules leads to unfair hearings for student-defendants). Critics argue that lack of evidentiary standards typically places accused students in unfair positions because colleges have the ability to "make outcome-determinative evidentiary rulings." Id. See also Jamie D. Halper, Law School Faculty Call for Title IX Sexual Assault Policy Changes, HARV. CRIMSON (Sept. 1, 2017), http://www.thecrimson.eom/article/2017/9/1/law-faculty-title-ix/ (calling for revocation of Obama Dear Colleague Letter guidelines). A group of Harvard Law School professors, in a memo called "Fairness for All Students Under Title IX" vocalized their belief that the Obama-era guidelines fail to provide fair standards for dealing with sexual assault. Id. The memo stated that the suggested definitions of assault, "go way beyond accepted legal definitions of rape, sexual assault, and harassment." Id. At the heart of the memo was the concern that accused students do not receive a fair assessment of the evidence to decide guilt; as one professor states, "[t]hese policies have meant that accused students have, on many occasions, been subjected to a process that really does not give them a fair chance to establish what the real facts of the incident were." Id. See also Boucek, supra note 23, at 107 (discussing legislation aimed to protect both parties in a campus judicial proceeding). In 2015, the federal Safe Campus Act of 2015 was passed to help protect student-defendants from false accusations. Id. The bill prevents colleges from initiating internal investigations or "punishing sexual perpetrators until an official police report is filed." Id. Critics of the bill argue that this law will prevent students from reporting sexual assault out of "fear of speaking to police." Id. See also Lavinia M. Weizel, The Process That is Due: Preponderance of the Evidence as the Standard of Proof for Univ. Adjudications of Student-on-Student Sexual Assault Complaints, 53 B.C. L. REV. 1613,1618-19 (2012) (discussing due process rights in sexual misconduct cases). The "preponderance of evidence standard" is an appropriate standard to use in sexual misconduct hearings and ensures student-defendants are afforded their due process rights. Id. See also Ralph D. Russo, Why NCAA sexual assault policy stops short of punishment, CHICAGO TRIB., Mar. 30, 2018, 9:30 AM (discussing how student-athletes avoid punishment due to their status as athletes).
(60.) See COLUM. U., GENDER-BASED MISCONDUCT POLICY AND PROCEDURES FOR STUDENTS 1, 11 (2016) http://www.columbia.edu/cu/studentconduct/documents/GBMPolicyandProceduresforStudents.pdf (detailing school policies). Columbia University defines incapacitation as when "an individual lacks the ability to knowingly choose to participate in sexual conduct." Id. Columbia University has followed suit with other schools and defined what the administration defines as rape, sexual assault, and sexual harassment. Id. at 4-12. See also BROWN U., SEXUAL AND GENDER-BASED HARASSMENT, SEXUAL VIOLENCE, RELATIONSHIP AND INTERPERSONAL VIOLENCE AND STALKING POLICY 1, 7-8 (2016), http://www.brown.edu/web/documenls/title-ix/brown-university-title-ix-policy.pdf (detailing definition of sexual assault and determining factors); DEP'T OF STUDENT AFFAIRS, STUDENT SEX MISCONDUCT POLICY AND PROCEDURES: DUKE'S COMMITMENT TO TITLE IX, DUKE U. (2017), https://studentaffairs.duke.edu/conducl/z-policies/student-sexual-misconduct-policy-dukes-commitment-title-ix (outlining definitions of pertinent terms); Rory Gerberg & Laura Dunn, Defining Consent to Effectively Address Sexual Violence, HARV. U. 1, 2 (2015), https://scholar.harvard.edu/files/rorygerberg/files/WH_task_force_comments_2014april.pdf (providing guidelines on consent). Colleges are beginning to require affirmative consent. Gerberg & Dunn, supra, at 2, 5-8. Affirmative consent required it to be given proactively, voluntarily affirmative, and unambiguous. Id. at 2. An explicit or implicit "yes" must be communicated in order for consent to be given. Id.
(61.) See ALI, supra note 25, at 2 n.3 (discussing sexual assault statistics). The "preponderance of the evidence" standard means if it is more likely than not that the defendant committed the alleged sexual offense. Id. at 11. See also Loschiavo & Waller, supra note 58 (discussing "preponderance of evidence" standard in higher education). The "preponderance of the evidence" standard is used in "nearly all civil cases." Id. Furthermore, the "preponderance of the evidence" standard is used by federal courts to "resolv[e] complaints against educational institutions." Id. The Obama Dear Colleague Letter took the "preponderance of the evidence" standard's prevalence into consideration, "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard." Id. The Obama Dear Colleague Letter concluded the "preponderance [of the evidence] is the correct standard and that clear and convincing is not the correct standard because it is a higher standard than is appropriate in student conduct cases." Id. See also Behre, supra note 57, at 321 (noting prevalence of "preponderance of evidence" standard). Colleges and universities used the "preponderance of the evidence" standard "for their hearings prior to the increased scrutiny on sexual misconduct cases." Id. See also Triplett, supra note 58, at 517 (examining ways colleges strike balance between due process and victim protection). Despite criticisms, the "preponderance of the evidence" standard is commonly used in many different circumstances, including administrative law proceedings. Id. Due to the lack of direct evidence in sexual assault cases, a higher standard would cast an "insurmountable obstacle" on student victims. Id. See also Jennifer Karapetian, Deputy DA: Many sex assault cases tough to prosecute, CBS NEWS (Oct. 24, 2014), https://www.cbsnews.com/news/deputy-da-many-sex-assault-cases-tough-to-prosecute/ (discussing obstacles prosecutors face when trying sex crimes). Sexual assault cases are difficult to prosecute because of the preconceived notions society has about assault. Id. Furthermore, the embarrassment and fear felt by survivors leads to underreporting. Id.
(62.) See Sarah Edwards, The Case in Favor of OCR's Tougher Title IX Policies: Pushing Back Against the Pushback, 23 DUKE J. GENDER L. & POL'Y 121, 126-30 (2015) (stating "preponderance of evidence" standard benefits both parties). Additionally, training is required for individuals who are implementing the procedures. Id. at 126.
(63.) See Stephanie Saul & Kate Taylor, Betsy DeVos Reverses Obama-era Policy on Campus Sexual Assault Investigations, N.Y. TIMES, Sept. 22, 2017, https://www.nytimes.com/2017/09/22/us/devos-colleges-sex-assault.html (discussing Trump Administration's new sexual misconduct policies). The Administration's revocation of the Obama-era policies was a response to criticism that Obama-era policies went too far in its attempt to force colleges to take sexual assault seriously. Id. See also David Porter, Biden: New Campus Sex Assault Guidelines Not an Improvement, ASSOCIATED PRESS (Oct. 12, 2017), https://www.usnews.com/news/best-states/new-jersey/articles/2017-10-12/biden-to-talk-politics-and-college-sex-assaults (providing former Vice President Joe Biden's opinion on rollbacks). Former Vice President Joseph Biden reemphasized the "preponderance of the evidence" standard's widespread acceptance in civil cases. Id. Biden noted:
It's a civil proceeding... [t]o say "[y]ou were engaged in this behavior and the preponderance of evidence demonstrates it, and that's why you are being penalized in the following way." They make it sound like what it's not--putting the violator in jail. Don't let them confuse you.
Id. See also Tripled, supra note 58, at 518-19 (discussing higher evidentiary standards). A higher standard would be inappropriate because the higher standard should only be involved when "important individual interests or rights are at stake." Id. The preponderance standard is more applicable because it is a civil standard. Id.
(64.) See Saul & Taylor, supra note 63 (stating colleges' freedom to use higher standard for sexual misconduct cases). The standard colleges are now allowed to use is the "clear and convincing" standard. Id. The rollbacks further "eliminated a requirement that investigations be completed in [sixty] days." Id. The new guidelines allow investigations to go on for a reasonable amount of time, and now encourage mediations. Id.
(65.) See Saul & Taylor, supra note 63 (expressing concern for accused student's rights under Obama guidelines). Trump's Department of Education believed Obama's guidelines "lacked basic elements of fairness." Id. The Administration's move came after many accused students, "most of whom are men..., had complained that campus judicial processes had become heavily biased in favor of female accusers." Id.
(66.) See Saul & Taylor, supra note 63 (deeming higher standard as inappropriate in sexual misconduct cases). Many supporters of the Obama era guidelines are concerned about the damaging effects the new provisions will have on school communities. Id. The new guidelines present a risk for some confusion amongst schools of the appropriate standard to use:
Some states followed the lead of the Obama administration and passed laws requiring colleges to use the lower standard. But the move on Friday suggests Ms. DeVos wants colleges to consider making the change if they are legally able, raising the possibility that different colleges will begin to evaluate sexual assault complaints in different ways. Janet Napolitano, the president of the University of California system and a Homeland Security secretary in the Obama administration, said in a statement that the department's announcement would "in effect weaken sexual violence protections, prompt confusion among campuses about how best to respond to reports of sexual violence and sexual harassment, and unravel the progress that so many schools have made." (California is one of the states now requiring the lower standard.)
Id. See also Sarah Brown, What Does the end of Obama's Title IX Guidance Mean for Colleges?, CHRON. OF HIGHER EDUC. (Sept. 22, 2017), https://www.chronicle.com/article/What-Does-the-End-of-Obama-s/241281 (discussing Trump Administration's new Title IX initiatives). The policy change "also scrapped a 2014 question-and-answer document that went into more detail about how colleges should bring their policies and practices into compliance with Title IX." Id.
(67.) See Williams & Cave, supra note 6 (highlighting sexual assault problem in Australia). See also END RAPE ON CAMPUS AUSTRALIA, CONNECTING THE DOTS: UNDERSTANDING SEXUAL ASSAULT IN UNIVERSITY COMMUNITIES 1, 3-4 (2017), available at https://staticl .squarespace.com/static/5762fc04f5e231826f09afae/t/58b3d08ddb29d6e7a2b8271d/1488179368580/Connecting+the+dots.pdf (detailing sexual assault epidemic in university settings in Australia). One factor in the occurrence of sexual assaults on college campuses is the rape culture on university campuses. Id. at 3-5. Data shows that one in five Australians believe a "woman is 'partly responsible' for being [assaulted] if she was intoxicated at the time of assault." Id. at 3. Furthermore, one in six believe that, "when women say 'no' to sex, they really mean 'yes.'" Id. at 3-4. See also Respect Now Always: The National University Student Survey on Sexual Harassment and Sexual Assault, VICTORIA U. INST. 1, 4 (2017) [hereinafter Respect Now] (publicizing Victoria University's research on sexual assault on its campus). In 2016, 26% of Victorian University students who reported sexual harassment, stated the harassment occurred in a university setting and 5% of Victoria University students who were surveyed stated they sought support or help from Victoria University. Id.
(68.) See Williams & Cave, supra note 6 (discussing prevalence of sexual assault cases). The sexual assault problem in Australia has risen and, in 2016, "reached a six-year high." Id. Despite the obvious issue of sexual assault on Australian university campuses, reform has been met with resistance, "[f]or an entire decade we have been raising the issue of sexual assault and harassment on campus with the administration. For an entire decade we have been met with resistance to change." Id. See also John Ross, One in five uni students sex abuse victims, WEEKEND AUSTRALIAN (Aug. 1, 2017, 11:25 AM) (detailing high rates of sexual assault). According to the article, "[o]ne in five university students experience some form of sexual harassment while on campus and 1.6 per cent report having been sexually assaulted, a landmark new report has found." Id. Australia has a culture of "gendered violence" which students point to as a contributing factor to the sexual assault epidemic. Id. The Human Rights Commission report concluded that "almost two-thirds of harassment victims are women" and 87% of the sexual assault victims had not reported the attacks to their universities." Id. See also University Action to Prevent and Address Sexual Assault and Sexual Harassment, U. AUSTRALIA (Aug. 1, 2017), https://www.universitiesaus-tralia.edu.au/Media-and-Events/media-releases/University-action-to-prevent-and-address-sexual-assault-and-sexual-harassment#.W7YZghNKglJ (detailing Australian University's ten-point plan for combatting sexual assault). The ten-point plan includes initiatives to extend support for victims, provide first responder training, and providing an interim support line to universities. Id.
(69.) See Williams & Cave, supra note 6 (exposing universities' responses to sexual assault complaints). Some students comment that campus initiatives to combat sexual assault are "window dressing." Id. One student's remark on the initiatives demonstrates this sentiment: "'I was pretty hopeful, maybe naively, coming into it, thinking we could bring students' concerns there and they would be addressed,' said Anna Hush, 23, a philosophy student who was part of the group last year." Id. However, this was not the case and students felt a lack of collaboration, "[b]ut it was much more them telling us what they were doing rather than us contributing to decisions being made." Id. See also Anna Belgiorno-Nettis, Student Perspectives on Talking About Assault in Australian law Classes, 27 LEGAL EDUC. REV. 1, 5-10 (Dec. 2017), available at http://www.austlii.edu.aU/au/journals/LegEdRev/2017/6.pdf (advocating for student perspectives incorporated in trainings). When sexual assault is discussed in classrooms, many students may have personal experiences with sexual assault. Id. at 10.
(70.) See Williams & Cave, supra note 7 (highlighting differences between Australia and United States' guidelines). The United States also has a sexual assault problem yet, unlike Australia, it taken steps to combat sexual misconduct on college campuses. Id. Australian students have advocated for institutions to adopt uniform guidelines to battle sexual assault, but the legislature has failed to move forward on any guidelines. Id. See also Michael Flood, Universities have a problem with sexual assault and harassment: here's how to fix it. CONVERSATION (July 31, 2017, 3:55 PM), https://theconversation.com/universities-have-a-problem-wilh-sexual-assault-and-har-assment-heres-how-to-fix-it-81096 (expressing discontent with how Australian universities historically handled their sexual assault problem). Despite the fact that the Australian Human Rights Commission's survey report was released in 2017, the results should not come as a shock to Australian universities. Id. Studies had already established that "risks of sexual [ ] violence were highest among university-aged [individuals]." Id.
(71.) See Williams & Cave, supra note 7 (emphasizing doubts community has about universities' dedication to student safety). See also Katelin Morris, Universities Unveil Plan to Reduce Sexual Harassment and Sexual Assault on Campus, CONVERSATION (July 31, 2017, 10:14 PM), https://theconversation.com/universities-unveil-plan-to-reduce-sexual-harassment-and-sexual-assault-on-campus-81892 (reporting on Australia's sexual assault issue). Australian women are "four times as likely as men to be sexually assaulted" in a university setting. Id. Furthermore, "[a]cross all university settings, the commission found that women were three times as likely as men to be sexually assaulted in 2015 or 2016." Id. This article states that, "most perpetrators were fellow students known to them." Id. The report confirms that "[t]rans students and gender-diverse students had higher risk of sexual assault and sexual harassment." Id. See also Flood, supra note 70 (questioning universities' preventative measures). Studies show that face-to-face training is more effective. Id. An effective face-to-face training can assist a victim in coping with the trauma, educate students on victim-blaming, decrease bystander effect, and prevent sexual assault. Id.
(72.) See Austl. Hum. Rts. Comm'n, supra note 28, at 4, 36 (highlighting Australia's sexual assault problem). The universities recognize a responsibility to all students "to provide equal access to education." Id. at 178. The universities seek to increase services available to students who have been assaulted. Id. 178-80. See also University Action to Prevent and Address Sexual Assault and Sexual Harassment: Media Release', U. Austl. (Aug. 1, 2017), available at https://www.universitiesaustralia.edu.au/Media-and-Events/media-releases/University-action-to-prevent-and-address-sexual-assault-and-sexual-harassment#.W7VfYrbMyRs (announcing remedial actions). Shortly after the Australian Human Rights Commission report was released, Australian universities released a statement publicizing its plan to address the report's findings and stating its commitment to understanding the depth of this prevalent problem. Id. See also Guidelines: For University Responses to Sexual Assault and Sexual Harassment, Universities Australia, 1,17 (Jul. 20, 2018) (providing Australian universities guidance on how to address sexual assault and harassment) [hereinafter Guidelines: University Responses]. The Commission's report "demonstrated that more needs to be done not only to encourage students to report incidents to their institutions, but to support them through the reporting process." Id. at 3. See also Sylvia Varnham O'Regan, What is the legal process for rape cases in Australia?, SBS News (Aug. 22, 2015) (examining legal processes for rape and different factors included in legal process). There are different interpretations of consent and many rape cases depend on whether there was or was not consent. Id. Australian law states that "consent must be freely and voluntarily given." Id. The question of whether consent is "freely and voluntarily given" is often one person's word versus another's. Id. See also Crimes Act (N.S.W.) [section] 61H A(3)(2007)) (Austl.) [hereinafter Crimes Act] (defining when person has knowledge about consent). To determine whether consent was freely and voluntarily given, many Australian courts look to whether a person had knowledge of the other's lack of consent:
(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
Id. The Crimes Act further states that a person cannot consent if they are unconscious or asleep, below the legal age, or consents only due to force or terror. Id.
(73.) See Austl. Hum. Rts. Comm'n, supra note 28, at 37 (outlining different kinds of sexual assault). Improper looking or gawking was one of the more frequent manifestations of sexual harassment. Id. Jokes or comments that are sexually suggestive are another type of sexual harassment. Id. at 26. Students also reported being asked invasive questions regarding their personal lives, physical appearance, or questions regarding their sexual activity. Id. See also Belgiorno-Neis, supra note 69, at 2 (noting classes on sexual assault will only grow in debate). Australian media did not view sexual assault classes as helpful, but instead called them curriculum "potentially disturbing content." Id. at 1-2. Many American and Australian classes are taught from the perspective of the professor and not the student. Id. at 2. The student perspective is ignored in favor of the professor's research. Id. See also Victorian Centres Against Sexual Assault, Fact Sheet: Statistics About Sexual Assault 1, 1-2 (2018) (presenting statistics about sexual assault). The studies found that "[93%] of offenders are male." Id. at 1. The studies also "found that 9.9% of treated sex offenders reoffended sexually, compared with 17.3 % of non-treated sex offenders," almost 10% of sex offenders were repeat offenders. Id. at 2.
(74.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 37 (discussing statistics of groups more prone to experience sexual harassment than others). Groups like "[t]rans[gender] and gender diverse students 45% were more likely to have been sexually harassed in a university setting in 2016 than men or women." Id. at 6. Trans-gender and gender diverse students report being asked intimate "questions about their private life," are told "sexually suggestive comments or jokes," and have to deal with inappropriate staring. Id. at 37. The data states that "63% of women were sexually harassed on at least one occasion, compared with 35% of men. 32% of women and 17% of men experienced sexual harassment in a university setting." Id. at 39. See also Gareth Hutchens, Rate of sexual violence against women has risen dramatically since 2012, ABS says, GUARDIAN (Nov. 8, 2017), https://www.theguardian.com/australia-news/2017/nov/08/rate-of-sexual-violence-against-women-has-risen-dramatically-since-2012-abs-says (articulating statistics which show increase in violence against women). The report interestingly notes that, "[t]he proportion of women who have experienced sexual violence in the last 12 months increased from 1.2% in 2012 to 1.8% in 2016." Id. The report noted that one in five women reported experiencing some form of sexual assault. Id.
(75.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 8 (discussing spaces where sexual violence occurs). When circumstances of sexual harassment that occurred while traveling to or from campus are omitted, "25% of women and 15% of men experienced sexual harassment in a university setting in 2016." Id. at 39. It should be noted that the national survey allowed those who responded to describe their gender in their own way. Id. Those who did not wish to identify as male or female are identified as "trans and gender diverse." Id. The survey results state that "trans[gender] and gender diverse individuals 45% were more likely to have been sexually harassed in a university setting in 2016 than women and men." Id. at 6. See also Rachel Olding, Survey reveals how widespread sexual harassment is in Australia, SYDNEY MORN ING HERALD, Nov. 8, 2017, 4:00 PM, https://www.smh.com.au/national/survey-reveals-how-widespread-sexual-harassment-is-in-australia-20171108-gzgvpz.html (listing statistics about who is most affected by sexual violence). Women aged "[eighteen] to [twenty-four] were the worst affected" by sexual harassment and assault. Id. See also Hush & Funnell, supra note 32 (discussing widespread sexual assault on college campuses). Students across universities are affected by this problem yet many university counseling centers are failing to adequately support students. Id.
(76.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 98 (discussing impacts of sexual assault on students). Harassment even occurs digitally, "[m]ore than one in five (22%) students experienced technology-based sexual harassment in 2016, including repeated or inappropriate advances on email, social networking websites and internet chat rooms and sexually explicit emails or SMS messages." Id. at 8. The report stated, "[p]ublic transport to and from university was also a common location where students reported experiencing sexual harassment (22%) and sexual assault (15%)." Id. at 60.
(77.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 98 (highlighting stories gathered from survey results). The report received numerous stories from people who suffer from mental health issues stemming from their university-related sexual assault or harassment experience. Id. Individuals reported that they now suffered from, "stress, anxiety, depression, drug and alcohol abuse and PTSD." Id. Others reported that they have grappled with long-term effects of their assault. Id. See also Janet Phillips, Measuring Domestic Violence and Sexual Assault Against Women, Parliament of Australia, https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/publications_archive/archive/violenceagainstwomen (last updated Dec. 12, 2006) (explaining 2005 survey which gathered data on violence against women). Typically, some women who were assaulted suffered physical injuries, such as bruising. Id. If the victim had a previous relationship with the perpetrator, it was reported that "49[%] were physically injured." Id. Furthermore, "[8%] of women sexually assaulted by their current partner were physically injured." Id. This survey found that 87% of sexual assault victims sought support services after the "most recent incident." Id. Most sexual assault survivors sought support from family members or friends. Id.
(78.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 99 (illustrating damaging effects sexual violence has on mental health). Individuals report that after their assault, they were tormented with the emotional turbulence that stems from an intimate invasion. Id. One woman reported that she was assaulted when she was a student at a university over twenty years ago and still is struggling with the effects of the assault and the response from the university. Id. The report states that, "[r]esearch has indicated that young people who experience sexual assault are also at particular risk of self-harm or suicidal thoughts. Some individuals began self-harming or contemplated suicide following their experience of sexual assault and sexual harassment." Id. at 99.
(79.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 99 (describing causes of anxiety and depression for students). The Australian Human Rights Commission received significant data from those whose studies and careers have been sidelined or affected by sexual assault and harassment. Id. One student stated, "[d]uring this time he was allowed to continue studying at the university, I was mostly on prac (sic) at the time but it was very scary to go on campus when I had to attend workshops or lecture days." Id. See also Anderson, supra note 45 (examining prevalence of sexual assault in Australia). Focusing solely on conviction rates can be "misleading and deeply unhelpful" because focusing on conviction rates ignores the human aspect of a sexual crime and the support victim's need from authorities. Id.
(80.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 99 (highlighting long-lasting effects sexual violence has on university campuses). The stress arising from a sexual assault experience sometimes forced students to end their studies. Id. One student reported: "I left the course and tried studying by distance education but have now been so traumatised by 'higher education' institutions that 1 don't feel able to set foot into study again." Id. See also Reporting on Sexual Violence, supra note 50, at 7 (discussing mental health effects on sexual assault survivors). Sexual assault survivors often grapple with anxiety and post-traumatic stress disorder. Id.
(81.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 119-20 (explaining barriers to reporting incidents of assault). The report noted the most common reason for not reporting: "68% of students... did not think their experience was serious enough to report and 53%] did not think they needed help." Id. at 127. Other reasons included the victim did not know "to whom to report, they did not know how to report [and] they thought the incident would be too hard to prove." Id. See Chmielewski, supra note 25, at 170 (discussing factors contribute to victim's silence). Victims will also remain silent because "[t]he school investigation and adjudication process still may be frustrating, it may still entail a considerable cost in terms of time and energy if not money, and it may leave complainants vulnerable to attacks on their credibility and motives." Id.
(82.) See Ross, supra note 67 (describing how students handle sexual assault experiences). The students who did not report claimed that they were unsure of who to inform. Id.
(83.) See Ross, supra note 67 (discussing obstacles to reporting instances of sexual abuse); Chmielewski, supra note 25, at 162 (discussing how preponderance standard helps alleviate burdens).
(84.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 9-13 (explaining possibly why students did not report). The data suggests, "[t]he majority of students had little or no knowledge about where they could go to formally report or make a complaint about an experience of sexual harassment (60% of students) or sexual assault (62%)." Id. at 9. See also C.R. Williams, Burdens and Standards in Civil Litigation, 25 SYD. L. REV. 165, 166 (2003) (stating how burden of proof in civil cases is balance of probabilities). The "balance of probabilities" standard is also called the "preponderance of probabilities." Id. See also GUIDELINES FOR UNIVERSITY RESPONSES TO SEXUAL ASSAULT AND SEXUAL HARASSMENT, U. AUSTL. 1,17 (July 20,2018) [hereinafter GUIDELINES FOR UNIVERSITY RESPONSES] (providing Australian universities guidance on how to address sexual assault and harassment). The Australian Human Rights Commission's report "demonstrated that more needs to be done not only to encourage students to report incidents to their institutions, but to support them through the reporting process." Id. at 3.
(85.) See Ali, supra note 25, at 2 (providing overview of sexual assault statistics). The Department of Education was concerned after statistics were released detailing how prevalent sexual assault was on college campuses. Id. See also Brake, supra note 14, at 147 (describing Obama Administration's efforts to alleviate sexual assault). The sexual assault epidemic that is present on college campuses should not be a shock to lawmakers or academics. Id. at 112. The "one in four or five" statistic has been circulating political circles and campuses for some time. Id. The requirement that colleges report or respond to known allegations is a rule that has been part of the legal framework for at least fifteen years. Id. The statistics, however, have been reviewed with a fresh focus and under the Obama Administration the federal government increased its efforts in preventing sexual abuses. Id.
(86.) See Boucek, supra note 23, at 106 (detailing in depth history of Title IX). The Obama Dear Colleague Letter was addressed to colleges "receiving federal funding to address Title IX and its prohibition of sexual violence." Id. The Obama Dear Colleague Letter provided specific guidelines colleges were to follow when investigating and adjudicating sexual misconduct claims. Id. See also Brake, supra note 14, at 110 (discussing Title IX guidelines). The guidelines outlined in the Obama Dear Colleague Letter intensified Title IX enforcement. Id. at 112. Starting in the 1990s, the OCR has stated with "increasing specificity the requirements of fair and equitable grievance procedures for handling sexual harassment." Id. at 126. No standard of proof was articulated in early guidelines; however, there has always been the baseline principle that procedures be fair and equitable. Id. See also Chmielewski, supra note 25, at 143 (explaining history of standard of proof).
(87.) See Murphy, supra note 20, at 97-101 (discussing aim of Obama Dear Colleague Letter). The Obama Dear Colleague Letter clarified Title IX's scope and explicitly stated sexual violence was within Title IX's purview. Id. at 97. See also Brake, supra note 23, at 125-26 (discussing standard of proof). The Obama Dear Colleague Letter "took the additional step of clarifying the proof standard as a [preponderance of the evidence] standard-a move that reflects the poor record colleges and universities have in handling sexual assault allegations." Id. at 126. See also Edwards, supra note 62, at 132 (discussing ramifications for not adhering to Title IX requirements). If colleges adhere to "Title IX's standards and fashion their adjudicatory processes accordingly, the school will not lose federal funding." Id.
(88.) See Brake, supra note 14, at 122-23 (highlighting grievances of accused students). There have been a significant number of stories from accused students who have added their own voices to the dialogue surrounding sexual assault. Id. Because the circumstances of the allegations are vague and punishments harsh, these stories can paint the accused as sympathetic figures. Id. These stories are meant to highlight the harm done to men by these accusations. Id. The true purpose of the emergence of these stories is to battle victim's stories and dismantle any sympathy being offered to them. Id. These stories have gained popularity in the media and have only perpetuated the rape culture that exists on college campuses and in general society. Id. See also Denby, supra note 2 (discussing how sexual assault epidemic warrants attention from mainstream); Saul & Taylor, supra note 63 (explaining how advocates for accused students worry about lack of fairness in college adjudication process).
(89.) See Brake, supra note 14, at 112-13 (discussing mishandling of sexual assault cases). Institutions are notorious for their general mishandling of sexual assault investigations and proceedings. Id. at 115. These investigations are typically mishandled in favor of accused students. Id. at 117. It is stated, "many of the Title IX cases brought by women whose reports of sexual assault were ignored, minimized, or covered up involve allegations against male athletes that it would take an unduly long string-cite to contain them all." Id. See also Chmielewski, supra note 25, at 156 (explaining how universities need to reframe how sexual assault viewed). "The realities of rape on campus should prompt a reframing of the problem to focus not only on the rights of the accused, but also on the needs of victims for meaningful recognition and remedies." Id.
(90.) See Brake, supra note 14, at 124 (highlighting how contentious "preponderance of evidence" standard). The most controversial and contentious aspect of Title IX has been the OCR's directive to colleges to use a "preponderance of the evidence" standard. Id. Critics have challenged other aspects of the "campus justice system," but no issue is as passionately critiqued as is the "preponderance of the evidence" standard. Id. See also Brown, supra note 66 (discussing Trump Administration's new Title IX policy changes). See also Edwards, supra note 62, at 132 (discussing how critics argue "preponderance of evidence" standard upends due process). Many critics are concerned that, "schools will be more inclined to erroneously find accused students guilty because of OCR's 'preponderance of the evidence' standard employed by the 'Dear Colleague' Letter." Id. See also Henrick, supra note 14, at 60 (arguing "preponderance of evidence" standard perpetuates idea all student-defendants guilty). Critics state the preponderance of evidence standard is "inappropriately low" for sexual misconduct hearings. Id. at 62.
(91.) See Henrick, supra note 14, at 61-62 (alleging student-defendant rights not considered in Obama Dear Colleague Letter). Critics argue, "the [Obama Dear Colleague Letter] most problematic aspect is its formalization of a presumption of guilt in campus adjudications." Id. at 61. Critics fear the "preponderance of evidence" standard will contribute to an increase in convictions "irrespective of an accused student's guilt or innocence." Id. at 62. See also Brake, supra note 14, at 122 (explaining accused students' concerns about evidentiary standard). Accused students and their advocates believe "they have been unfairly accused and too harshly punished for conduct more akin to miscommunication than sexual assault." Id. at 110-11. See generally Saul & Taylor, supra note 63 (explaining accused students' perspectives on sexual assault).
(92.) See Brake, supra note 14, at 109-10 (advocating for "preponderance of evidence" standard). The "preponderance of the evidence" standard is used because the proceedings are a student disciplinary proceeding and not a criminal trial. Id. Colleges have historically believed that this standard best balances the interests of both the accused and the complainant. Id. See also Edwards supra note 62, at 132-33 (arguing "preponderance of evidence" standard appropriate and does not harm rights of student-defendants). Proponents for the "preponderance of evidence" standard argue, "[w]hile the 'clear and convincing' evidence standard is more difficult to meet, the preponderance of evidence standard, if employed correctly, balances the need to protect both victims of sexual assault and the interests of the accused." Id. at 132. See also Weizel, supra note 59, at 1641 (discussing how "clear and convincing" standard is not necessary for due process). Despite being easier to meet, "no court has found clear and convincing evidence necessary to protect students' due process rights." Id.
(93.) See Brake, supra note 14, at 128 (discussing prevalence of preponderance of evidence standard). Prior to the Obama Dear Colleague Letter, a majority of universities and colleges were using the "preponderance of the evidence" standard. Id. It is reported that: One study using data from public and private universities collected shortly before OCR issued the 2011 DCL found that 61% of the institutions surveyed used the "preponderance of evidence" standard and only 30% applied the "clear and convincing evidence" standard. Id. Other studies have reported that the correct percentage of colleges and universities using the preponderance standard is closer to seventy percent. Id. See also Behre, supra note 57, at 321 (stating colleges used "preponderance of evidence" standard in discrimination cases before Obama Dear Colleague Letter required them to). College disciplinary hearings vary but, "the majority of colleges used a preponderance of the evidence standard for their hearings prior to the increased scrutiny on sexual misconduct cases." Id. See also Weizel, supra note 59, at 1617 (stating "preponderance of evidence" standard is right standard to use in civil proceedings). In addition to the fact that the "preponderance of evidence" standard is "necessary to ensure an equitable disciplinary proceeding," use of the standard is "consistent with other civil rights law and is the evidentiary standard used by OCR itself when investigating a school's alleged failure to comply with Title IX." Id.
(94.) See Brake, supra note 14, at 128 (explaining why preponderance standard better than higher standard). The standards' common occurrence indicates that the preponderance standard is the best standard to use to settle the different "interests at stake in student disciplinary proceedings." Id. See also Edwards, supra note 62, at 135 (stating "preponderance of evidence" standard is best standard to use in sexual misconduct cases). The "preponderance of evidence" standard is more appropriate than the "clear and convincing" standard because a higher standard can overwhelm schools. Id. A school disciplinary hearing panel consists of lay people who both are "judge and jury." Id. For this reason, courts do not want to impose formal rules of evidence or an evidentiary standard that will burden the school. Id. See also Weizel, supra note 59, at 1652 (discussing how use of "preponderance of evidence" standard is aligned with best interests of school). A higher evidentiary standard like the "clear and convincing" standard could burden schools by "requiring a school to present evidence of significant quantity and quality in order to meet its burden." Id. at 1654. Using a preponderance standard helps schools preserve their resources, "[a]dministratively, schools have an interest in preserving their limited resources through disciplinary proceedings that are not highly formalistic or difficult to implement." Id. at 1652. These interests would not be served if a "clear and convincing" standard was used. Id.
(95.) See Brake, supra note 14, at 128 (stating "preponderance of evidence" standard more appropriate). The higher standard of "clear and convincing" evidence is inappropriate because that standard was never meant to be used to adjudicate college proceedings. Id. See also Triplett, supra note 58, at 516 (stating "preponderance of evidence" standard balances rights of both accused and victims). The "preponderance of evidence" standard "is the fairest allocation of power in the special context of sexual assault." Id. at 517. Student-defendants are already given a presumption of innocence and "any standard above a preponderance would produce an insurmountable obstacle for victims with meritorious claims, thereby implicating Title IX liability and exposing the institution to added costs." Id. A school disciplinary proceeding is not akin to a criminal proceeding and does not "implicate the same liberty interests." Id. at 518. Because the "preponderance of evidence" allows schools to limit their resources, "institutions should adopt a preponderance standard because that standard advances Title IX's goals without infringing on due process for the accused." Id. 519.
(96.) See Brake, supra note 14, at 128 (explaining why "clear and convincing" standard inappropriate). Many advocates claim a higher evidentiary standard is inappropriate:
The authors also faulted the clear and convincing evidence standard for "inaccurately treat[ing] the [a]ccused [s]tudent as more important than the student who believes s/he was a victim of misconduct and/or as having more important interests than all other members of the academic community have in the maintenance of a calm, peaceful and productive living/learning environment."
Id. See also Triplett, supra note 58, at 518-19 (stating student-defendants not entitled to higher evidentiary standard). Despite the fact that student-defendants do have interests at stake, "the Supreme Court has not held that they reach such a level as to require a clear-and-convincing standard." Id. at 518. The Court stated a "clear and convincing" standard is warranted when substantial interests are at stake. Id. For example, a higher evidentiary standard is required in cases involving "fraud or some other quasi-criminal wrongdoing by the defendant." Id.
(97.) See Brake, supra note 14, at 129 (stating higher standard not equitable standard). It has been a long-held belief that the higher standard is not an equitable standard in this context. Id. Other OCR investigations have reflected a similar belief; "[a]n OCR investigation during President George W. Bush's administration took a similar stand, faulting the use of a higher evidentiary threshold as incompatible with Title IX." Id. See also Porter, supra note 63 (declaring Trump Administration's new guidelines are misinformed). Former Vice President Biden stated the Trump Administration was attempting to "confuse the issue" by endorsing a higher evidentiary burden. Id. See also Edwards, supra note 62, at 132 (discussing other ways schools ensure evidentiary burden is satisfied). Colleges may require that the hearing panel only find responsibility for sexual misconduct via a unanimous vote. Id. at 132-33. Furthermore, colleges can ensure hearing panel members are properly trained. Id.
(98.) See Brake, supra note 14, at 129 (discussing OCR's endorsement of "preponderance of evidence" standard). The OCR's endorsement of the "preponderance of the evidence" standard did not come as a surprise to colleges or universities. Id. See Perkins, supra note 53, at 19 (stating colleges decided to use preponderance standard before it mandated).
(99.) See Brake, supra note 14, at 129-30 (explaining benefits of lower standard). Most American colleges used a lower standard prior to the Obama Dear Colleague Letter. Id. The lower standard still protects an accused student's due process rights while protecting victims through the adjudicative process. Id. See also Weizel, supra note 59, at 1654 (concluding "preponderance of evidence" standard best accommodates interests of all parties involved).
(100.) See Brake, supra note 14, at 130 (questioning difference between two standards). Even though the preponderance standard has caused controversy, it is not clear what exactly the substantive difference is between the two standards. Id. The preponderance standard still requires that the claimant provide enough evidence to prove it is more likely than not that the claim occurred. Id. It is unclear if the choice between the two standards makes a material difference. Id.
(101.) See Brake, supra note 14, at 130 (finding not much difference between two standards). Under the preponderance standard, a claimant's claim has been found to be unsubstantiated despite evidence presented. Id. Under the higher standard, accused students have been found guilty. Id. See Weizel, supra note 59, at 1638 (finding "preponderance of evidence" best accommodates interests of all affected parties). The preponderance of evidence standard balances both the gravity of the situation for both the student-defendant and complainant. Id. Advocates for the "preponderance of evidence" standard argue the standard adds "legitimacy and uniformity to school disciplinary proceedings," they state:
[S]chools' use of the preponderance of the evidence standard will afford students the opportunity to participate meaningfully in a process that takes seriously the interests at stake for both parties. The application of the preponderance of the evidence standard will thereby enhance the legitimacy of school disciplinary proceedings in the eyes of students. The enhanced legitimacy of the proceedings will in turn serve to promote basic democratic values among the student body.
Id. at 1644.
(102.) See Brake, supra note 14, at 131 (stating higher standard casts insurmountable burden on complainants). The author argues against higher proof standards stating, "[t]he indeterminacy of this amorphous standard leaves decision-makers with a great deal of discretion to smuggle in unrealistic and heightened proof requirements that tap into unfounded assumptions about what kinds of proof should exist in provable cases of sexual assault." Id. See also Triplett, supra note 58, at 517 (discussing how higher standard leads to obstacles for victims). A higher standard of proof casts an "insurmountable obstacle" on victims and leads to extra costs for institutions. Id.
(103.) See Brake, supra note 14, at 132 (explaining why some colleges prefer higher standard). Colleges face incentives to use a "clear and convincing" standard and to ultimately "find students not responsible. This risk is particularly acute when" an athlete is accused of assaulting another student. Id. Schools do have reasons to avoid sexual misconduct hearings:
Title IX itself, through its liability standard for damages in civil lawsuits, incentivizes institutions to find against complainants in student misconduct proceedings. If, after a prompt and thorough investigation, the university finds insufficient evidence to conclude that sexual harassment took place, no further action would be required to avoid liability to the complainant; a court would not find the institution deliberately indifferent to a student who complained of sexual assault if the institution fully investigated but ultimately took no disciplinary action because it exonerated the person accused.
Id. See also Dryden, supra note 25, at 663 (arguing "clear and convincing" is appropriate intermediate standard to use in school disciplinary hearings). Advocates for a higher standard contend that substantial interests are at stake and, "[t]he clear and convincing evidence standard is more of an intermediate standard used when particularly important civil issues are at stake." Id.
(104.) See Brake, supra note 14, at 132 (explaining incentives for lower standard). Colleges have many incentives to use a higher standard:
The growing number of lawsuits brought by male plaintiffs challenging their institutions for disciplining them for sexual assault compounds these incentives. Although many courts have been skeptical of such claims, a handful of recent cases have permitted male students disciplined for sexual assault to sue their schools on grounds including due process, breach of contract, and Title IX.
Id. Because colleges want to avoid lawsuits from accused students, they lean towards a higher standard. Id.
(105.) See Brake, supra note 14, at 117 (explaining how sports can factor into college's decision to use higher standard). When a student at a large university accuses a male athlete of sexual assault, the school is more inclined to find the athlete not guilty. Id. at 145-46. These athletes are highly valued at these universities and the allegations against them are "ignored, minimized, or covered up." Id. at 117. See also Russo, supra note 25 (stating how athletes are protected by academic institutions from sexual misconduct allegations). Advocates state that, "at the heart of the problem is athletes are often given preferential treatment and protection by athletic programs, boosters and even local enforcement when they are accused of crimes such as sexual assault and domestic violence." Id.
(106.) See Brake, supra note 14, at 132-33 (arguing higher standard unreasonable). School judicial proceedings are akin to a civil trial and should be adjudicated using a fair standard of review--the "preponderance of the evidence." Id. at 110. See also Weizel, supra note at 59, at 1617 (discussing how preponderance standard is consistent with other civil rights proceedings).
(107.) See Brake, supra note 14, at 133 (stating colleges highly prioritize their own reputation). Colleges have to prioritize their own reputation:
Another incentive that goes against a finding of responsibility is the desire to protect the university's own reputation. The desire to avoid the negative impact on the university's reputation that might result from a finding that sexual assault occurred on campus, combined with implicit skepticism of complainants, especially where the students knew each other before the alleged assault, can tilt the field toward a "not responsible" finding.
(108.) See Brown, supra note 66 (discussing Trump's new Title IX policy). President Trump's new Administration is in the interim period of attempting to implement new guidelines. Id.
(109.) See Brown, supra note 66 (explaining timeline for new Administration). The new guidelines certainly will place schools in "a pre-2011 era. But colleges' policies wont. At least not right away." Id. Despite not immediately replacing the 2011 guidelines, the rescission of the Obama Dear Colleague Letter and the 2014 follow up document titled, "question and answer" is an indication that 2011 initiative for the federal government to strictly enforce Title IX may be over. Id.
(110.) See Brown, supra note 66 (discussing Trump Administration's new Title IX rules). Considering the backlash Obama's DCL received, it is conceivable that the Trump Administration's rollback may end the Obama Dear Colleague Letter. Id.
(111.) See Brown, supra note 66 (stating due process concerns as Trump's reasoning for Title IX change). The Trump Administration has been seeking advice from "[d]ue process advocates [who] say the 'preponderance' standard is too low, given that the facts in campus rape cases are often messy and that, much of the time, one or more students involved consumed alcohol or drugs." Id. Allowing universities to use different approaches during this interim period is problematic because it results in different approaches at different schools. Id.
(112.) See Brown, supra note 66 (predicating what standard mandated by Trump Administration).
(113.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 158 (explaining how rape culture contributes to biases against women). Many victims stated in the report that they did not want to step forward because they feared backlash from classmates and the general community. Id. at 142. See also Donaldson, supra note 30 (reaffirming Australia has rampant sexual assault problem). The results of the Australian Human Rights Commission should not come as a surprise to universities. Id. The truth is universities have allowed this behavior. Id.. Their silence makes them complicit in sexual crimes that have occurred on their campuses. Id. Even more so, their silence encouraged perpetrators to thrive in an environment where those with a responsibility to protect turn a blind eye. Id. See also Hush & Funnell, supra note 32 (stating inadequate policies and procedures). Universities have inadequate support services in place to help victims who seek help from the institution. Id. There are "long wait times for counseling" services due to underfunded and understaffed counseling services. Id. "[T]he International Association of Counselling Services recommends [that there should be] one counselor for every 1,000-1,500 students." Id. Australian universities, however, report that there is only "one counselor for every 4,340 students." Id. See also Anderson, supra note 45 (discussing whether attitudes have truly changed). There needs to be a change in the way masculinity is viewed and what society views as "masculine." Id.
(114.) See Williams & Cave, supra note 6 (explaining Australia does not have similar legislation). Recent efforts to implement effective policies have been thwarted. Id. See also Anderson, supra note 45 (questioning what actions taken to correct this issue). It was stated in 2015 that "federal and other joint initiatives" were to receive over 400 million dollars from the Australian government. Id. See also LAW REFORM AND ACCESS TO JUSTICE, supra note 33, at 11 (discussing justice system's typical response to sexual assault). Victims of sexual assault face "unique and systemic disadvantage, discrimination, and marginalization within the criminal justice process." Id. at 11. Society's historical hesitance to acknowledge sexual assault as crime and current hesitance to recognize it as a reality have led to victims who do come forward feeling embarrassed or ashamed. Id. at 12. See also ROYAL COMM'N RESEARCH PROJECT, supra note 39, at 9 (highlighting how in 1940s child abuse reemerged as societal problem). Child abuse was recognized in the 1940s and this resulted in the creation of child protection and welfare organizations. Id.
(115.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 3 (stating Commission's report is first to collect comprehensive data on campus sexual assault). The thirty-nine Australian universities gathered to create a report to identify the problems contributing to the sexual assault problem. Id. See also Respect Now, supra note 67, at 3-5 (outlining Victoria University's response to report). Victoria University released its own report building on the data found by the Australian Human Rights Commission report. Id. at 3. Victoria University pledges to take initiatives to change attitudes and behaviors, create a safer environment for students, and improve support services. Id. at 3-4. See also Hush & Funnell, supra note 32 (calling out universities for their lack of response to petition for change). End Rape on Campus Australia has contacted all thirty-nine university officials to take immediate action. Id. A petition was signed by 2,000 people advocating for more training for the campus community. Id. This petition was sent to universities and met with no response, until the Australian Human Rights Commission report came about. Id.
(116.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 168-86 (highlighting problematic areas universities need to focus on). The report established "recommendations for change" to guide the universities in developing and changing their policies. Id. at 168. See also LAW REFORM AND ACCESS TO JUSTICE, supra note 33, at 12-15 (discussing ways Australia reform systemic problems). Many survivors report that "the adversarial criminal trial process [is] secondary victimisation, which compounds the trauma experience of the original event." Id. at 12. Addressing how victims are treated in the legal system once they do make a complaint is crucial in improving trust in the justice system. Id. at 11. In order for victims to feel supported by the criminal justice system, the system needs to encourage "safe mechanisms of disclosure" and work to change attitudes regarding sexual assault. Id. at 17-18. Universities need to be clear on their reporting procedures. Id. at 40. Universities need to take additional steps to publicize this information so students are aware of how they can obtain support. Id.
(117.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 168 (recommending areas need improvement on college campuses). The report recognized areas that needed to change in order to truly provide a safe campus for all students. Id. There is agreement that universities must do more than just state that they are aware of what needs to change--they must take affirmative action. Id. See also Wahlquist, supra note 36 (criticizing Australian universities for failing students). Universities need to be fiercely pursuing initiatives to end campus sexual assault: "[u]niversities should be approaching this problem with the rigour (sic) we bring to our academic pursuits." Id. Colleges are moving forward with online training programs. Id. Some scholars believe that online training is not going to be effective. Id.
(118.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 169-72 (explaining importance of leadership in initiating change). From the report, it is evident that improved measures for preventing sexual assault are necessary and must come from university leadership. Id. at 169. For Australia to tackle this enormous problem, they need to implement a governance structure that works for all students and mandate Vice-Chancellors to actively participate in creating this governance structure. Id. See also How the justice system lets sexual assault victims down, supra note 37 (expressing outrage over culture allows perpetrators to slip through system). The victim-blaming culture that exists dissuades victims from reporting their abuse. Id.
(119.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 170 (recommending ways leadership make impact). The Vice-Chancellors need to engage all levels of the university in a transparent manner based on evidence and expertise. Id. Leadership engagement is needed to change deep-rooted beliefs and behaviors. Id. at 11. See Flood, supra note 70 (making point university leaders need to spearhead educational responses). University officials need to undertake a holistic approach. Id. Leadership needs to work on "changing organisational policies and practices [in order to build] an equitable university culture." Id. Education programs need to focus on combatting "physical and sexual violence." Id. Small-group teaching seems to work best. Id.
(120.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 168-86 (discussing feasible action plan). The Vice-Chancellors along with the advisory body must develop "an action plan for the implementation of these recommendations." Id. at 172. The action plan is set to be "broad and extensive consultation with all relevant stakeholders from the university community and, where relevant, the wider community." Id. See also Student Perspectives, supra note 69, at 3 (advocating for inclusion of student perspectives in education programs). Discussions about sexual assault are necessary. Id. Universities need to spend time considering how to facilitate these discussions. Id.
(121.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 172-77 (explaining importance in engaging academic community). Engaging the entire community is necessary in order to work to change the rape culture of these campuses. Id. at 170. See also Alcorn, supra note 28 (advocating for change in way schools attack this problem). Since the Harvey Weinstein scandal, society is not only acknowledging the existence of sexual harassment but expressing a desire to stop it, "[t]he idea that [sexual harassment is] inevitable, that women need to 'put up with it', especially if the harassment is at the lower end of the scale, remains pervasive." Id. Younger people are beginning to hold themselves and others to higher standards. Id. The problem that occurs is the policies in place lead to "perverse outcomes" when complaints are made. Id.
(122.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 10 (stating need for action plan). Some recommendations state, "[t]he development of an action plan should involve broad and extensive consultation with all relevant stakeholders from the university community." Id. In order to create lasting change, all relevant personal should be included in the conversation on change. Id. at 6. See also Anderson, supra note 45 (posing question of what actions taken and analyzing effectiveness). Australia's sexual assault problem goes beyond university campuses. Id. Reforms in the justice system need to be contemporaneous with reforms happening on college campuses. Id. See also Sexual Assault Offenders, supra note 46 (exposing faults in Australian justice system). Some scholars argue that a special court could be effective in presiding over sexual assault cases. Id. Specialized courts would assist in expediting the legal process between the filing of the complaint and trial. Id. See also How the justice system lets sexual assault victims down, supra note 37 (discussing obstacles victims face when filing complaint). Currently, it takes approximately two years before a trial begins on a complaint. Id.
(123.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 16 (stating women more at risk for sexual violence than men). Women face sexual assault and harassment at Australian universities at disproportionately higher rates than men. Id. at 6. Rape culture plays a pivotal role in the occurrence of sexual assault; "[r]esearch indicates that sexual assault and sexual harassment are often driven by deeply held norms and attitudes about women, their role in society and relationships between men and women." Id. at 11. See also Olding, supra note 75 (shedding light on prevalence of sexual assault in Australia). Most Australian women report being sexually harassed, "[h]alf of all Australian women say they have been sexually harassed." Id. College-aged women are most affected, with "[38%] reporting act such as inappropriate comments about their bodies and sex life, indecent exposure or unwanted touching, kissing or grabbing in the past year." Id. These instances are rarely reported to police. Id.
(124.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 158 (explaining how rape culture contributes to sexual violence). Attitudes commonly believed at universities are that:
[W]omen are less intelligent or capable than men, men are entitled to expect sex from women, sexual assault and harassment are 'normal' at university, people who experience sexual assault and harassment are to blame for what happens to them, women make false reports of sexual assault and sexual harassment, and sexual assault and sexual harassment are not a big deal.
Id. at 173. See also Rape in marriage: Why was it so hard to criminalise sexual violence?, supra note 40 (discussing history of sexual context). Australia's current rape culture is reflective of its past. Id. Until the 1970s, the legal system protected marital rape and there was a gap in the law. Id. There were minimal legal protections for women and children and the definition of sexual assault was poorly defined. Id. It has only been about fifty years since the legal system, (1) implemented laws protecting women and children and (2) attempted to define what constitutes sexual assault and what constitutes consent. Id. See also Laws around Consent, supra note 31 (discussing ambiguity of consent). Consent is defined differently depending on what territory an individual is in. Id. Rape culture is an intrinsic factor in how consent is interpreted. Id. See also How the justice system lets sexual assault victims down, supra note 37 (highlighting how society embraces rape culture). This culture "implies women are responsible for men raping them--perhaps they'd been drinking, or maybe they wore the 'wrong' clothes and were 'asking for it.'" Id.
(125.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 174 (discussing importance of education programs in battling deep-rooted toxic behaviors). Education programs have been identified as effective primary prevention tools. Id. "The long- term goal of these initiatives should not simply be to improve knowledge or change attitudes, but ultimately to change behaviour." Id. See also Hush & Funnell, supra note 32 (discussing effectiveness of different preventative techniques). Telephone-based support is appealing to victims because of the anonymity and flexibility it provides. Id. This may be helpful for those victims who do not feel safe on campus or feel too uncomfortable to visit campus to seek support. Id.
(126.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 174 (explaining importance of educating communities on sexual assault). See also Donaldson, supra note 30 (stating what needs to change in order for behaviors to change). Educating communities on importance of consent and what constitutes consent is vital. Id. However, if Australia wants to change the way society views sexual assault, individuals are going to have to hold those responsible for deplorable behaviors accountable. Id.
(127.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 175 (discussing importance of education programs). The National Association of Services Against Sexual Violence states in its "National standards for the primary prevention of sexual assault through education... the importance of training which is based on best practice research from local and international sources and delivered by appropriately trained experts or peer educators." Id. See also Respect Now, supra note 67, at 4 (stating Victoria University's commitment to educating community members).
(128.) See Rock, supra note 57 (discussing publication of list of schools with pending sexual assault investigations). Schools are not happy with the list because they believe they are overregulated. Id. See also Williams & Cave, supra note 6 (acknowledging student concerns regarding Australia's sexual assault problem). Students argue that universities should adopt similar policies to the United States, including, the database of pending sexual assault cases at universities. Id. See also LAW REFORM AND ACCESS TO JUSTICE, supra note 33, at 19 (discussing strengthening reporting mechanisms and data collection). The data collection problem is not limited to universities. Id. As a whole, Australia has issues with keeping accurate records and collecting data on sexual violence. Id. Australia needs to focus on collecting data on the "(a) attrition rates...; (b) case outcomes; and (c) trends in relation to particular groups." Id. at 4. Australian universities need to coordinate a collection on similar data. Id. at 21. Australian universities should work closely together in obtaining this data and sharing it. Id.
(129.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 15,184 (explaining importance of monitoring change). Monitoring and evaluation of the changes Australian universities are set to make are crucial because it's the only effective way for Australian universities to track the effectiveness of their efforts. Id.
(130.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 15, 184 (discussing factors to consider when analyzing report statistics). Universities should focus on collecting data about formal reports made; and even collect information when a formal report is not made:
In collecting and reporting on this data, some key factors for universities to consider is the time taken to respond to the report and any feedback about their processes. Even where an individual does not choose to make a formal report, universities should collect some data as this information can be helpful in assessing improvements to policies and practices.
(131.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 184 (stating recommendations for monitoring and evaluation). It is recommended that universities collect information on when students reach out to counsellors:
A key concern raised in submissions related to long waiting periods for counselling services for students who had been sexually assaulted or sexually harassed. In light of this, it is specifically recommended that universities collect data about the average amount of time students are required to wait to see a counsellor. This will assist universities to determine adequate numbers of counselling staff required to be able to support students.
(132.) See Chmielewski, supra note 25, at 162 (discussing ways to encourage reporting). In order to encourage victims to come forward with their complaints, universities need to make important changes:
Given the frequency of sexual assault in college communities, the barriers to reporting that many victims face, and evidence that the vast majority of college rapes arc likely committed by repeat offenders, the discussion must be reoriented to focus not only on the needs of those who might be falsely accused. Adopting the preponderance of the evidence standard in all school adjudications for rape and sexual assault would likely encourage victims to come forward, and it would enable colleges to take disciplinary action against students they find more likely than not to have committed acts of sexual acts of violence against other members of the community.
(133.) See Brake, supra note 14, at 109-10 (providing history rooted in civil rights and an overview of evidentiary standard used). See also Chmielewski, supra note 25, at 144 (discussing how higher standard inconsistent with cause of action). The Obama Dear Colleague Letter stated "'[g]rievance procedures that use [a] higher standard are inconsistent with the standard of proof established for violations of the civil rights laws and are thus not equitable....'" Id. See also Braun, supra note 48, at 110 (discussing ways procedures reformed).
(134.) See Williams, supra note 84 (stating how balance of probabilities work). See also Lievore, supra note 46, at 2 (stating factors necessary to establish victim credibility).
(135.) See GUIDELINES: UNIVERSITY RESPONSES, supra note 72, at 15 (explaining "balance of probabilities" standard). See also Williams, supra note 84 (defining "balance of probabilities" standard).
(136.) See GUIDELINES: UNIVERSITY RESPONSES, supra note 72, at 3, 15 (highlighting appropriateness of "balance of probabilities" standard in school misconduct hearings).
(137.) See supra Part II.A-B (discussing emergence of sexual assault as problem on college campuses); Chmielewski, supra note 25, at 157 (explaining how victims often stay silent). Sexual assault violence evades the spotlight, because "[c]ollege students who have been raped or sexually assaulted stay silent in overwhelming numbers," leading to sexual violence escaping attention because victims did not feel comfortable sharing their experiences. Chmielewski, supra, at 158.
(138.) See supra Part III.A-B (discussing systemic sexual assault problem in general society). See also Donaldson, supra note 30 (highlighting sexual assault issue in Australia); Denby, supra note 2 (explaining epidemic in United States).
(139.) See AUSTL. HUM. RTS. COMM'N, supra note 28, at 158 (highlighting toxic attitudes towards women); Anderson, supra note 45 (discussing how relationship with masculinity needs to change). See also Chmielewski, supra note 25, at 144 (discussing importance of "preponderance of evidence" standard). If either the United States or Australia wants to upend the way sexual assault is treated and viewed, both countries need to reform their policies and procedures, such as universal adoption of the "preponderance of the evidence" standard. Id.
(140.) See supra Parts IV.A-B (examining different evidentiary standards used by colleges).
(141.) See supra Part IV.A (arguing detriment of lack of consistency in evidentiary standard).
(142.) See supra Parts IV. A-B (arguing consistent use of "preponderance of evidence" standard as way to help all students).