Leaked DOJ Memo Recommends Considering Victims’ Sexual History In Rape Cases

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Above Photo: Secretary of Education Betsy DeVos. (Gage Skidmore)

When Secretary of Education Betsy DeVos announced the Trump administration will replace an Obama-era directive for schools to combat sexual harassment and assault, she reflected strategy that was already ongoing.

On Wednesday, Alt Immigration leaked a Department of Justice memo from Feb. 15 that encouraged shifting policy in favor of accused perpetrators in rape cases. The memo stated: “Every complainant’s sexual history, if relevant, may be introduced at the hearing. Currently, questions about the complainant’s sexual history with anyone other than the accused perpetrator should not be permitted.”

Such a policy change would put sexual assault survivors in a vulnerable position in which they could be shamed for reporting their experience.

AlterNet writes:

While the specific changes to Title IX guidance have yet to be shared, we can get an idea of what to expect from a leaked memo courtesy of @ALT_USCIS on Twitter, which is run by self-proclaimed insiders at the U.S. Citizenship and Immigration Service.

In a Feb. 15, 2017, memo from the Department of Justice to the deputy attorney general, the authors express concern about the consequences faced by students accused of sexual misconduct. They list a few recommended changes in policy to shift even more favor on the side of the accused—one of which is particularly alarming.

Read the full memo below:

The policy would directly contradict the 1994 Violence Against Women Act’s rape shield laws, which are designed to prevent defendants from introducing victims’ sexual history or reputation as evidence in proceedings. The legal information website Nolo says that challenges to rape shield laws historically have been unsuccessful:

The Constitution guarantees a defendant the right to confront the victim, or accuser, at trial. Defendants have argued that rape shield laws abuse this right by hiding victims’ previous sexual behavior. But, indicative of the nationwide approach, an Illinois court held that a defendant’s right to confrontation doesn’t include a right to present irrelevant evidence such as the victim’s reputation and sexual acts with other people. (People v. Cornes, 80 Ill.App.3d 166 (1980).)

After DeVos’ announcement to roll back victim protections, 20 state attorneys general signed a letter urging her to keep the protections in place. The letter cited the U.S. Department of Justice findings that 20.5 percent of college women experience sexual assault after entering college, and that the majority of these incidents go unreported.

The attorneys general wrote: “While we recognize that there is a great deal more that can be done to protect students and agree on the importance of ensuring that investigations are conducted fairly, a rushed, poorly-considered effort to roll back current policies sends precisely the wrong message to all students. Yet there is every indication that is exactly the approach your Department is taking.”