Getty Images/The Washington Post
On Friday, video obtained by The Washington Post showed Republican presidential nominee Donald Trump boasting about how he has groped and kissed women without their permission. In the 2005 video, Trump can be heard saying that his fame allows him to “do anything” to women, including grabbing them “by the pussy.” At the start of Sunday’s presidential debate, co-moderator Anderson Cooper asked Trump about the comments.
“You called what you said ‘locker-room banter,’” Cooper said. “You described kissing women without their consent, grabbing their genitals. That is sexual assault. You bragged that you have sexually assaulted women. Do you understand that?”
Trump replied that it was Cooper who didn’t “understand what was said," and that the comments were “locker-room talk” and not to be taken literally.
Cooper was correct in describing what Trump boasted of as sexual assault, and the Obama administration has pushed colleges to treat any sexual activity without explicit consent as assault. In recent years, the U.S. Department of Education has issued detailed guidance on how colleges should handle reports of sexual violence, opened investigations at nearly 200 institutions and created a star-studded awareness campaign.
In the days since Trump's comments went public, many experts and advocates have noted how it draws attention to the important issue of consent on college campuses. Trump's response has also brought into sharper focus the difference between how Trump and his Democratic opponent, Hillary Clinton, might tackle campus sexual assault.
Clinton has spoken of the issue repeatedly and highlighted it on her campaign website. Her plan, announced more than a year ago, would be an extension of the Obama administration's. Trump has not yet described how he would approach the issue, although the Republican Party platform calls for removing the responsibility of colleges to investigate allegations of sex assaults.
On Clinton’s website, the campaign describes a “plan to end campus sexual assault” that is “guided by three core principles.” Those principles are providing comprehensive support to survivors, ensuring a fair process for all and increasing prevention efforts.
“Every campus should offer survivors the support they need, no matter their gender, sexual orientation, ethnicity or race,” the website states. “Those services, from counseling to critical health care, should be confidential, comprehensive and coordinated … It’s not enough to address this problem by responding only once sexual assault occurs. We need to redouble our prevention efforts and start them earlier. We should increase sexual violence prevention education programs that cover issues like consent and bystander intervention and make sure we have programs not only in college but also in secondary school.”
The statement also praises the Obama administration, saying the current White House has “worked hard to shine a light on campus sexual assault.”
In 2011, the Department of Education’s Office for Civil Rights issued a Dear Colleague letter that urged institutions to better investigate and adjudicate cases of campus sexual assault. The letter clarified how the department interprets Title IX of the Education Amendments of 1972, and for the past five years it has been the guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence.
Republican lawmakers have argued that the guidance goes farther than clarifying Title IX, saying the department has illegally expanded the gender discrimination law’s scope, increasing the liability for institutions dealing with bullying, harassment and sexual violence and relaxing the burden of proof institutions are required to use when adjudicating cases of sexual assault.
The department maintains the guidance did not create any new laws or policies, however, and only serves to fill in some of the vaguer parts of Title IX in order to help colleges not run afoul of the law. The debate has split college leaders, lawmakers, advocates and legal experts -- and led to three lawsuits against the Education Department.
"We're hoping to continue to have that conversation with whichever administration is in place come January," said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, an organization sponsoring one of the lawsuits. "I think whoever wins this election, action is needed to make sure Title IX doesn't continue to silence speech and establish kangaroo courts. We need to make sure it's used to combat discrimination without taking short cuts and sacrificing civil liberties."
Because much of how colleges now handle sexual assault has been defined by departmental guidance, not through rule making, the next president could make those changes. That's left some advocates worried what a Trump presidency could mean for the future of Title IX.
It wouldn’t be the first time a president rolled back Title IX guidance created during an earlier administration. In 2010, the Obama administration revoked a controversial 2005 Title IX clarification issued under President George W. Bush that only allowed institutions to use internet or email surveys when determining female students’ interest in athletic participation. The 2005 guidance had similarly wiped out a 1996 clarification issued under President Bill Clinton.
“Title IX is a statute, which makes it the domain of Congress, but presidents actually have a lot of power over how it is implemented,” Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, said. “The statute paints the requirements in broad strokes, so it’s up to the Department of Education to fill in the details, allowing the president to influence Title IX policy on a more granular level.”
Many experts on Title IX have predicted that a Trump administration could cut the budget of the Education Department's Office for Civil Rights, effectively limiting the number of investigations it could conduct at a time when the office already struggles to keep pace with the number of cases it has opened. As of last year, it took OCR, on average, 940 days to complete a sexual assault investigation.
Trump has not offered a detailed platform about how he plans on handling campus sexual assault or said whether he plans on changing any guidance or funding related to Title IX. His campaign did not respond to several requests for comment Monday. The Republican Party, however, did include campus sexual assault and Title IX as part of the platform it released at the GOP convention in July.
Calling sexual assault a “terrible crime,” the platform stated that reports of sexual assault should be “investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge.” It criticized the Obama administration’s policies, saying the White House’s “distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse contravenes our country’s legal traditions and must be halted.”
While there is controversy over some of the Education Department's interpretation of Title IX, the view that colleges cannot simply tell those who file complaints of sex assaults to take their complaints to the police predates the Obama administration's guidance. Further, while many campus judicial systems have been criticized, many say that the suggestion that these matters are currently handled in “a faculty lounge” minimizes the expertise of many campus judicial systems and the importance of the issue.
End Rape on Campus, one of the most prominent victims' advocacy organizations focused on preventing campus sexual assaults, said both the Clinton and Bernie Sanders campaigns contacted the group when creating their sexual assault platforms last year. Neither Trump’s campaign nor any representatives for the GOP have contacted the group.
As a nonpartisan organization, End Rape on Campus declined to endorse either candidate, but its co-founder, Annie Clark, did say the GOP’s platform was concerning, as were Trump’s comments heard in the footage leaked Friday.
“Trump’s apology saying his comments were just locker-room banter is a real concern,” Clark said. “Those are the types of conversations that reinforce rape culture. I just hope whoever is in the White House will continue to move forward toward equality and listen to advocacy groups when making decisions.”
While the American Association of University Women also stressed it was willing to work with either administration, Lisa Maatz, AAUW’s vice president of government relations and advocacy, said that Trump’s 2005 comments were troubling. Describing the comments as a “textbook description of sexual assault,” Maatz said she was equally concerned about the apparent lack of awareness among the candidate and his surrogates, who have frequently characterized the statements as private “locker-room banter.”
In apologizing, Trump dismissed the comments as “just words,” and Trump’s campaign manager, Kellyanne Conway, said Monday that equating sexual assault and Trump’s comments demeaned victims. Jeff Sessions, a Republican senator from Alabama, said it was “stretch” to characterize what Trump described as sexual assault.
But the behavior described by Trump does match the U.S. Department of Justice’s definition of sexual assault, which defines the crime as “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.” And it matches the definition, increasingly codified through affirmative-consent policies, now used by most colleges and universities.
“We’ve had this perfect storm around campus sexual assault over the last eight years,” Maatz said. “We’ve had survivors coming forward at an unprecedented rate, we’ve had an administration that took an interest and we had the right staffing at the Education Department to start getting things done. That combination has created a national teach-in on campus sexual assault. We have moved well beyond the ‘boys will be boys’ excuse. While Trump and his surrogates seemed afraid to speak the words, almost everyone else described it as what it was. Strangely enough, that’s progress.”