Public Comment Submitted to DoE on Title IX Notice of Proposed Rule Making

Hi Everyone,

For reference, below is a copy of the comment I submitted individually to the Department of Education regarding the Notice of Proposed Rule Making and Regulations related to Title IX.

Take care,



Re: ED-2018-OCR-0064

To Whom It May Concern,

Thank you for the opportunity to comment on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. I am Johanna DeBari, Director of the Office of Survivor Advocacy & Community Education at Wesleyan University. In my role, I serve as a confidential survivor advocate supporting survivors of sexual violence, dating violence, stalking and sexual harassment, as well as a community educator working on developing and implementing interpersonal violence prevention programming, and raising awareness about these issues on our campus. My professional experience working with student-survivors of sexual violence and sexual harassment informs my fear regarding the impact of these proposed regulations.
There are many points of these regulations which are alarming. In particular, I am concerned about the following:

First, the proposed definition of sexual harassment (referenced in Section §106.30), including restrictions of violence which happens off-campus or during study abroad experiences, is particularly alarming. By framing sexual harassment as “unwelcome conduct that is so severe, pervasive, and objectively offensive, that it effectively denies a person equal access to the recipient’s education program or activity” does not reflect the reality of how sexual harassment and sexual violence occurs on college campuses. Research tells us sexual violence is often committed in “non-violent” ways, and rather than being “severe and pervasive,” is more coercive and manipulative, using dynamics of power and privilege to make students feel uncomfortable and violated. For example, 7 out of 10 rapes are committed by someone the victim knows (DOJ 2015); Immigrant girls and young women are almost twice as likely as their non-immigrant peers to have experienced incidents of sexual assault (Mindlin et al. 2015); nearly 1 in 4 transgender, gender queer, gender non-conforming, or questioning students experience sexual violence during their four years of undergrad (Cantor et al. 2017). Research abounds unpacking the disparities amongst how sexual violence impacts individuals with marginalized identities at greater rates than others.

We also know the impact of traumatic experiences like sexual assault and sexual harassment can be “severe and pervasive” as well; regardless of the “type” of incident. PTSD, depression, and chronic pain all are experiences complainants often navigate in the wake of experiencing trauma (Woods et al., 2005). Mental health challenges such as these can impact a students’ likelihood to succeed academically and thrive on campus. With this, 34.1% of students who have experienced sexual assault dropout of college, higher than the overall dropout rate of college students (Mengo & Black, 2015). These are all experiences that “deprive them of equal access to a funding recipient’s educational program or activity;” (ED-2018-OCR-0064, 61467). If someone does not have the capacity to engage academically to their full potential because they are managing neurobiological, involuntary, trauma responses, they are being denied access to the educational opportunities they deserve and have earned.

Narrowing the definition of what “counts” as campus property, marks to narrow the range of experiences which can be reported (and thus connected to supportive measures). A school should be responsible for the safety and care of their students, within all of the programs they participate in, including those like study abroad programs where they will be living and learning outside the United States. To remove the requirement that schools must be held accountable to sexual violence that occurs in one of these programs (i.e. outside of the United States) is a disservice to students. It empowers schools to turn a blind eye to experiences of violence that may happen in programs they oversee, but because they are not “geographically” on campus, no response is required. Denying complainants, their right to a recipients’ response in a reasonable manner supports a school’s ignorance for centering students’ well-being and safety in all aspects of their educational experience. By changing the boundaries of where a school is required to respond, complainant’s experiences are narrowed and minimized as well.

Second, the requirement of live hearings referenced in Section §106.45(b)(3)(vii) is equally harmful to complainants and is against best practice regarding trauma-informed support. Forcing a complainant and respondent to be in the same room together during a judicial proceeding creates a re-traumatizing environment for the complainant. It takes an immense amount of courage for complainants to first reach out for care and support; to tell someone their story in the first place. To then require them to sit in a room and confront a respondent again is not only threatening a students’ emotional and physical safety, it is against best practice in creating trauma-informed environments.

In addition, requiring live hearings will deter student-survivors from reporting in the first place. As a survivor advocate, when explaining options to survivors, including reporting, the survivors I have worked with have expressed relief when they find out they don’t ever have to sit in the same room as their perpetrator, if they choose to report at all. If I had to sit in a room with a survivor, and tell them they had to confront their perpetrator directly in order to fulfill their right to report and pursue accountability measures, I fear very few, if any, student-survivors would feel comfortable doing this.

Finally, requiring cross-examination as a part of the grievance process (referenced in Section §106.45(b)(3)(vii) is an equally alarming piece of these regulations. Along with live hearings, live cross-examination is counter-intuitive for creating trauma-informed environments for reporting and responding to reports of sexual violence. Research points to cross-examination as an opportunity to utilize rape myths and victim-blaming language (further capitalizing on aforementioned power-dynamics and inequities) to discredit witnesses (Zydervelt, 2016). This can serve as an intimidation tactic weaponized by respondents and their advisors to push a complainant to drop a case all together, or not want to report formally in the first place. Requiring a complainant to endure questions from an attorney (or other advisor) is something that historically has not been a part of the campus judicial process, and is currently an incentive for student-survivors to participate in this process, as opposed to reporting to the local police and pursuing accountability through the criminal justice system. The requirement for cross-examination removes this incentive and sets up yet another barrier for student-survivors to submit formal complaints.

Altogether, the impact of these aforementioned points presented in the proposed regulations stand to create a campus climate where sexual violence is going unchecked and unaccounted for to a greater extent. Complainants often don’t report a sexual assault for “fear of being disbelieved or not taken seriously” (Holland & Cortina, 2017). These proposed regulations will further discourage reporting, while also reifying adequately debunked myths and stereotypes about the nature of sexual violence on college campuses; feeding into narratives of victim-blaming and survivor-complainant disempowerment.

In sum, the narrowed definition, combined with requirements for a live hearing and live cross examination, are not only against best practice and available empirical data, they will prove harmful to student-survivors/complainants. First, students will have to endure escalating violence before their school is required to intervene, based on the narrowed definition. Second, student-survivors/complainants will be intimidated regarding the proposed reporting structure, thus feeling less comfortable in bringing reports to the attention of the University.

Altogether, the limited scope of the definition and changes to the overall judicial process structure create barriers for sexual violence and sexual harassment to be addressed adequately by higher education institutions, as well as impacting how student-survivors are seen and heard respectively on their campuses. These proposed regulations are not rooted in best practices and standards, and are rather more focused on removing liability of higher education institutions rather than prioritizing the safety and well-being of students.

For the foregoing reasons, these sections of the rule should be struck.

Johanna DeBari
Director, Office of Survivor Advocacy & Community Education
Wesleyan University


  1. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. 2015. “National Crime Victimization Survey 2010-2014” Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.
  2. Holland, K. J. & Cortina, L. M. (2017). “It happens to girls all the time”: Examining sexual assault survivors’ reasons for not using campus supports. American Journal of Community Psychology, 59(1), 50-64. doi: 10.1002/ajcp.12126
  3. Mengo, C. & Black, B. M. 2015. “Violence Victimization on a College Campus: Impact on GPA and School Dropout.” Journal of College Student Retention: Research, Theory & Practice. 18(2): 234-248
  4. Mindlin, J., Orloff, L. E., Pochiraju, S., Baran, A., & Echavarria, E. 2013. “Dynamics of Sexual Assault and the Implications for Immigrant Women.” National Immigrant Women’s Advocacy Project at American University. 1 -23. Retrieved on January 3rd, 2019 from
  5. Woods, A., Page, G., O’Campo, P., Pugh, L., Ford, D., & Campbell, J. (2005). “The mediation effect of posttraumatic stress disorder symptoms on the relationship of intimate partner violence and IFN-γ levels”. American Journal of Community Psychology, 36(1): 159-175. doi:10.1007/s10464-005-6240-7
  6. Zydervelt, S., Zajac, R., Kaladelfos, A. and Westera, N. (2016). “Lawyers’ Strategies for Cross-Examining Rape Complainants: Have we Moved Beyond the 1950s?” British Journal of Criminology, 57(3): 551–569.