“Terrifying and Exhausting”: Secondary Victimization in Title IX Proceedings at U.S. Higher Education Institutions

Abstract

Students at United States colleges and universities increasingly turn to campus Title IX processes to address sexual violence, but little research exists on the emotional fallout of Title IX processes and student perceptions of process bias. This paper presents an analysis of 72 responses to a 2021 survey of Title IX process complainants and respondents at higher education institutions. While students on both sides of Title IX processes experienced negative emotions, complainants often minimized these experiences while respondents emphasized them. This form of comparative secondary victimization risks further marginalizing complainant voices at higher education institutions.

Introduction

Sexual violence is endemic on United States (U.S.) college and university campuses. Women and genderqueer students are especially vulnerable to experiencing sexual violence: studies have estimated from 20 to 28% of undergraduate women and 28 to 38% of gender non-conforming undergraduate students in the U.S. experience sexual violence during their college years (Cantor et al., 2019; Hirsh & Khan, 2020; Mellins et al., 2017). Under Title IX, part of the Education Amendments Act of 1972, educational institutions have a legal obligation to have policies that address sexual and dating violence and give students access to accommodations (Cipriano et al., 2021). However, little previous research has addressed how students experience Title IX processes and whether perceptions of school bias alter student views of the process. Why do students feel the way they do about Title IX processes? Do students feel that Title IX processes are biased? How do student perceptions of bias line up with student emotional responses to the Title IX process?

This paper argues that Title IX processes can cause negative emotional consequences for students on both sides of the process like the phenomenon of secondary victimization documented in the criminal justice system. Further, complainants in Title IX cases face comparative secondary victimization through minimizing their negative experiences relative to their perceptions of how their schools treat other students, whereas respondents often argue they are treated worse than other students. First, I will examine previous literature on campus sexual violence and secondary victimization. Second, I will present the results of a 2021 survey of current and former students who went through Title IX processes at U.S. higher education institutions. Third, I will discuss comparative secondary victimization, a unique form of trauma that complainants in school Title IX processes experience. Finally, I will propose ways that schools can ameliorate the trauma that students can experience during Title IX processes.

Background on School Sexual Violence and Title IX

In 1972, Congress introduced Title IX, a one-sentence directive in the Education Amendments Act of 1972 that stated, “No 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 Federal financial assistance” (Education Amendments Act of 1972). This amendment obligated schools to address sex discrimination or risk losing federal funding — a threat that the U.S. has never followed through on for a sexual assault-related Title IX violation despite thousands of student complaints.

Since the 1970s, Title IX has evolved to encompass a complex web of legal precedents and federal government directives. In 1980, the U.S. government shifted the burden of enforcing Title IX from the Department of Justice to the Department of Education, codifying Title IX as an educational, rather than criminal, directive. The Supreme Court ruled that students may seek monetary compensation for school Title IX violations ( Franklin v Gwinnett County Public Schools ), sexual discrimination constituted a hostile work environment and therefore a hostile educational environment ( Meritor Savings Bank v. Vinson ), and Title IX plaintiffs must prove “deliberate indifference” to prevail in a civil suit ( Davis v. Monroe County Board of Education ). In 1997 and 2001, the U.S. Department of Education issued guidance for schools that outlined standards that schools must uphold to remain in compliance with Title IX, including requiring schools to investigate sexual harassment and, in 2001, affirming that harassment based on “the victim’s failure to conform to stereotyped notions of masculinity and femininity” was discrimination based on sex (U.S. Department of Education, 1997; 2001). In 2011, the Obama Administration issued what became known as the Dear Colleague Letter (DCL), which provided detailed instructions to colleges and universities on how to enforce Title IX. The letter required Title IX-related school disciplinary procedures to adopt a preponderance of the evidence (more probable than not) burden of proof, mandated that schools provide accommodations to survivors of violence (e.g., moving campus housing), required schools to conduct sexual violence prevention education, and outlined detailed information about the rights of complainants and respondents in Title IX processes (U.S. Department of Education, 2011). Men’s rights groups argued that the DCL was biased against men and schools should divert sexual violence cases to local law enforcement (Joyce, 2017). In 2017, the Trump Administration rescinded the DCL and replaced it with 2020 directives that required schools to allow the cross-examination of complainants, removed the preponderance of the evidence burden of proof requirement, gave schools the latitude to determine the length of their Title IX investigations, and removed protections for transgender students (U.S. Department of Education, 2020). These changes mirrored practices in criminal courts, exacerbating concerns that the Title IX process could have severe emotional consequences on survivors of violence.

Title IX has become a well-known method of addressing sexual violence outside of the criminal justice system partially due to the argument that Title IX processes are less traumatic to those involved than criminal trials (Brodsky, 2017; Brubaker, 2019). Criminal trials often drag on for several years and require a high burden of proof (beyond all reasonable doubt); in contrast, Title IX processes can take less than a year and have a lower burden of proof. Additionally, the consequences imposed upon those who cause sexual harm under Title IX are less severe, which can benefit those who cause harm — while the maximum punishment in criminal courts is incarceration, the maximum punishment in Title IX processes is expulsion, with most people found responsible only facing suspension or disciplinary probation. Title IX is also one of the only laws that addresses certain types of sexual harassment — purposefully misgendering someone, for example, is not a criminal offense, but is a potential Title IX violation (Cipriano et al., 2021). Understanding Title IX’s effect on those who go through the process is thus crucial for understanding the full scope of how accountability systems affect survivors who seek recourse for a wide range of negative experiences.

Most previous Title IX research has focused on specific procedural elements of Title IX or only gotten perspectives from students on one side of the process. Researchers analyzing reports of Title IX case outcomes from higher education institutions found that Title IX complaints rarely went to a hearing or resulted in findings of responsibility (Richards, 2019; Richards et al., 2021), but did not address how those results related to student perceptions of bias in the process. Other studies demonstrated that survivors often did not reach out to campus support services, with reporting rates as low as 6.9 to 11% (Fisher et al., 2016; Holland & Cortina, 2018), but gave conflicting answers on what deterred survivors from reporting. Other researchers looked at inconsistencies in sexual assault policies from institution to institution and how schools and school staff talked to their students about sexual assault prevention (Bedera & Nordmeyer, 2015; Holland & Bedera, 2020; Streng & Kamimura, 2015), but generally without talking to students who were not complainants in Title IX processes.

Previous Literature on Secondary Victimization

Scholars have long documented the phenomenon of secondary victimization in the criminal justice system (Laing, 2017; Patterson, 2011; Wemmers, 2013). Sometimes colloquially referred to in sexual assault cases as the “second rape,” secondary victimization is the phenomenon of victims of crime feeling further victimized by the criminal justice process. Court cases involve humiliating cross-examinations attacking a victim’s credibility, detailed pictures of physical injuries, and victim testimony with graphic details of assaults. Sexual assault trials can also cause clinical symptoms like panic attacks, anxiety, and defensive avoidance (Quas et al., 2005). The Rape, Abuse, and Incest National Network (RAINN) notes that only an estimated 23% of sexual assaults in the U.S. are reported to the police, and of those, only 20% lead to an arrest (RAINN, 2017). The legal system also has a long history of criminalizing survivors of violence — particularly Black women and other women of color — leading to more trauma (Haley, 2016; Ritchie, 2017).

Limited research exists on how students going through Title IX processes at higher education institutions experience secondary victimization. Holland et al. (2021) found that students identified several barriers to reporting assaults, ranging from minimizing their experiences to social-emotional barriers, though the article’s discussion of minimization focused on the victimization in survivors minimizing assaults themselves. Lorenz et al. (2022) examined positive and negative elements of survivor reporting experiences to Title IX offices but overlooked respondents and the role of perceived bias in student feelings. Other scholars found that college sexual assault survivors experienced secondary victimization when reporting assaults to off-campus law enforcement agencies (Eisenberg et al., 2019), particularly when campuses enforced mandated reporting requirements that referred sexual assault cases to law enforcement without a student’s consent (Holland et al., 2018). Recent studies also documented that violence survivors often experienced “institutional betrayal” — feeling betrayed by their schools — after going through Title IX processes, which highlighted one way that secondary victimization could exist within the Title IX process (Lorenz et al., 2021; Smith & Freyd, 2013).

Data Collection

To examine the emotional experiences of students in Title IX processes at higher education institutions, I surveyed current and former U.S. college students ages 18 and older who were involved in school Title IX processes at higher education institutions. The survey was anonymous, with all responses logged with a randomized identifier code in Qualtrics. There was no financial participation incentive. Every survey question was optional.

The survey contained two parts: demographic information and long-answer questions. The demographic information section asked participants about their race/ethnicity, gender identity, sexuality, role in the Title IX process they were involved in, the allegation(s) investigated, and the Title IX process outcome (if known). Once participants completed the demographic information section, participants could complete two long-answer responses. The first prompt was, “Please share your experience with your school’s Title IX process,” and the second was, “Do you feel like your school treated you the same, worse, or better than other students? If you felt you were treated differently, why?” The survey asked these questions sequentially so the second question would not affect student responses to the first.

The survey was online and distributed on social media to ensure that participants felt their answers would be anonymous and, unlike with many previous studies on campus sexual violence, could participate from any school. The online format also helped make the survey accessible to immunocompromised people during the COVID-19 pandemic. The limitation of this collection method was that the anonymous nature of the survey made it impossible to verify that every response was from someone who met the survey criteria. While there was no clear motivation, financial or otherwise, for someone to spend time writing detailed responses to the survey if they had never been through a Title IX process, such an occurrence was technically possible. Additionally, distributing the survey on social media limited responses to those currently living in locations with access to social media platforms.

I primarily distributed the survey on Reddit due to Reddit’s long history of being a place where sexual violence — and being accused of perpetrating sexual violence — is discussed openly (Bennett-Smith, 2012). I posted on subreddits (specific forums focused on a certain theme or community) about college in general, specific colleges and universities of varying sizes, Men’s Rights activism (groups that have historically been welcoming to Title IX respondents — see Matchar, 2014), supporting survivors of sexual violence, and supporting queer and trans people. I also posted in several private, not-school-specific survivor support Facebook groups and Facebook groups targeting college student respondents for research.

Method of Analysis

I removed all blank responses, responses from those who stated they did not meet the survey criteria, and responses from those who had third party roles in Title IX processes, leaving 72 survey participants, of which 46 wrote long-answer responses. I broke down the 72 survey responses by race and ethnicity, role in the process, gender, sexuality, and case outcome. One issue that arose was the phenomenon of “cross-complaints” — when students (typically in intimate relationships) accuse each other of violating Title IX so both people are complainants and respondents. This can often be a strategy for someone who caused harm to try to avoid culpability by prompting a school to issue no findings as a “compromise” or intimidating someone harmed to drop their complaint. For this analysis, I removed cases where a person was both a complainant and a respondent unless the person specified that their school found one person responsible for violating Title IX and the other person not responsible, in which case I deferred to the school’s finding to label one party a complainant and the other a respondent. This is still a suboptimal solution, not only because schools use different criteria for determining responsibility, but because being found not responsible does not erase one holding a certain role in a Title IX process. However, I ultimately determined it would bias the results more to exclude all cross-complaints, especially given the possibility of schools targeting students with marginalized identities through cross-complaint investigations.

I then conducted thematic and content analyses of student long-answer responses. I initially coded the long responses for any themes using Atlas.ti, without limiting myself to my initial question about student perceptions of bias, a method that can help illuminate patterns to explore further (Straus & Corbin, 1990). After looking over my initial codes, I did a subsequent focused coding process for the larger themes I noticed emerging, which gave me the ability to examine the prevalence of different specific topics in student responses (Lofland et al., 2006). These focused codes that I used for content analysis were “emotional responses to the Title IX process” and “perceived bias in the Title IX process.” For example, reflections on the Title IX process that I had initially coded with negative words like “depressed,” “tired,” “anxious,” and “overwhelmed” were sorted into “negative feelings about process,” while “relief” or “happy” were sorted into “positive feelings about the process.” For opinions about bias, I went through a third round of coding where I sorted the marked responses into four subgroups: those who felt they were treated better than others, those who felt they were treated worse than others, those who felt they were treated the same as others, and those who explicitly stated that they did not know how they were treated relative to others.

Positionality

I gave participants access to my full name, institution, and email address. Googling my name yields several articles discussing my involvement in Title IX-related litigation. I disclosed in postings that I was a queer-identified college sexual assault survivor, identified as White and cisgender, was a Title IX complainant as an undergraduate, and did anti-sexual violence advocacy work when I was an undergraduate. I answered any direct messages about the survey via social media or email, including questions about my background and research interests.

My identity as a queer sexual assault survivor gave me unique access to complainants and those who identified as queer for my survey, but it is possible that my identity as a White cisgender woman deterred people of color and those who did not identify as cisgender women from responding. It is also possible that my history with Title IX deterred those accused of causing sexual harm (respondents) from participating in the study — the Men’s Rights Activist subreddits were, overall, much more hesitant to post the survey than other types of subreddits.

In terms of biases in my analysis, there is an inherent greater risk in bias in only having one person code data, which is why I will present extensive verbatim excerpts of student responses when discussing results. I also carried into this study the knowledge that only 2 to 10% of sexual assault allegations are false (Lisak et al., 2010), which predisposes me to believing complainant narratives. To try to minimize bias in this analysis as much as possible, I will focus not on whether the Title IX process is objectively biased against one party, but on how students on both sides of the process felt about the process. I will contextualize student assertions about how their rights were violated with relevant federal guidance.

Findings

Demographics

Fifty-eight survey participants were Title IX case complainants (accusers) and 14 participants were respondents (accused). Different numbers of participants chose to answer each demographic question.

Race

Forty-two complainants and 7 respondents solely identified as White, and 16 complainants and 7 respondents identified as at least one non-White racial or ethnic category. Of the 16 complainants who did not solely identify as White, 2 identified as Black, 4 as Asian, 1 as Middle Eastern, 8 as Latinx, and 1 as Native American or Alaska Native. Of the 7 respondents who did not solely identify as White, 1 identified as Black, 1 as Asian, 3 as Latinx, 1 as Middle Eastern, and 1 as Black and Latinx.

Gender

Most complainants identified as cisgender women (46), while most respondents identified as cisgender men (11). There were 2 trans male participants (1 complainant, 1 respondent), 2 genderqueer complainants, and 4 participants (2 complainants and 2 respondents) who wrote in other gender identities than the options listed.

One group missing in the survey was trans women. This could be due to several factors, such as trans and gender non-conforming survivors of campus violence being more reluctant to report instances of violence to their schools, my identity as a cisgender woman, or the demographics of the subreddits on which I advertised the survey. Additionally, of the cisgender women who participated, all 46 were complainants in Title IX cases, even though women can be respondents in Title IX cases.

Sexual Orientation

Of the participants who specified their sexual orientation, 25 complainants and 2 respondents were queer (of which 15 identified as bisexual, 4 as gay/lesbian, and 8 as other) and 31 complainants and 12 respondents were not queer (straight/heterosexual).

Title IX Process Outcome

Of complainants whose cases reached a conclusion, 22 had the opposing party found not responsible and 15 had the opposing party found responsible. Of the respondents whose cases reached a conclusion, 4 were found not responsible and 7 were found or pleaded responsible. Other cases were ongoing.

Emotional Experience

Many survey participants expressed feeling negative about or traumatized by the Title IX process. Complainant narratives invoked language commonly used to describe secondary victimization in criminal justice literature. While it would be inaccurate to call the negative emotions respondents felt “secondary victimization” because respondents had no primary experience of victimization, respondents also described experiencing negative emotions that they attributed to the Title IX process.

Complainants

The narratives of complainants in Title IX cases mirrored the narratives of sexual violence survivors who have gone through the criminal justice system. Anna, for example, was a White queer woman who reported sexual assault and dating violence to her school. Anna was determined to go through the Title IX process and even tried seeking an order of protection against the respondent in her case from the criminal justice system, but ultimately, her school closed her Title IX case without a hearing. Anna stated that:

I didn’t feel supported at all. I found it very exhausting and not even slightly rewarding … [The investigators] met me once, treated me and the other woman like shit during the meeting, and never followed up … The campus police officer told me it wasn’t actually rape because a gun wasn’t held to my head. The female detective, after three hours of meeting with me, summarized it as that the perpetrator just liked rough sex. I felt re-victimized by the whole process.

Anna was one of several complainants who mixed clinical language like “re-victimization” to describe the Title IX process with more emotional language like “exhausting.” Jasmine, a queer White woman, emphasized how the failure of the Title IX process left her with mental health concerns, echoing Anna’s use of more clinical language to describe her experiences:

I dropped out a year later because I saw the accused daily on campus and was suffering severe PTSD. The school successfully prevented me from getting justice. I didn’t know where else to turn as a freshman so for the [school-provided] therapist to encourage me not to report was severely traumatic.

While Nina, a queer Middle Eastern woman who reported experiencing sex discrimination in the classroom, did not use more clinical language like “re-victimization” and “PTSD,” she echoed Anna’s description of the process as exhausting:

The Title IX process was exhausting and depressing for me … The person I met with rudely dismissed my complaints … I did not feel supported in the slightest … Every single part I had to go through felt rushed, discriminatory and ill thought out.

The negative emotions that complainants reported experiencing affected them outside of the Title IX process in concrete ways. Rachel, a White queer woman who reported dating violence and was the subject of a later dismissed cross complaint from her abuser, observed that the trauma of the investigation itself led to negative academic consequences:

I didn’t feel supported during the investigation because every request the school granted him (for example, he was a senior and asked for every extension possible to try and graduate before the case was closed) compounded the difficulties of an already re-traumatizing experience. My academic performance suffered incredibly, not only from the investigation but from the abuse I endured during the relationship.

Rachel’s observations about her experiences leading to academic difficulties mirrors Jasmine’s experience dropping out and what previous scholars have found regarding the collateral consequences of campus sexual violence — many survivors subsequently drop out of school or fail courses (Jordan et al., 2014; Mengo & Black, 2015), though that previous research focused on the consequences of initial sexual trauma itself, not on the extra effect of going through a Title IX process. Several other complainants who did not drop out of school considered it. Eva, a White queer woman, summed up the process by stating, “It was awful. I felt exhausted all the time and our Title IX coordinator didn’t tell me that I was eligible for accommodations through [the disability service center]. I almost dropped out of school because of the stress.” (Like with Anna, Eva used “exhausting” to describe the Title IX process and emphasized the role that her school’s lack of support played in her academic stress.)

Some complainants described feeling angry because of the Title IX process, especially when schools were slow to investigate or abandoned investigations altogether. Camille, a Black straight woman who was a sexual assault complainant, explained:

I was very apprehensive about this process, but I didn’t have much of a choice … However, after the school asked me questions regarding my assault, they decided they wouldn’t investigate further. Since I didn’t have enough identifying details (i.e. attacker’s full name, school status, etc.) they dropped my case. Initially this was infuriating because I didn’t feel it should be my responsibility to find out these details, but because I didn’t know it wasn’t worth pursuing ... It was a horrible experience.

Camille’s experience, while in violation of Title IX guidance mandating that schools conduct thorough investigations, was not isolated. Other complainants similarly described their schools putting the burden on them to investigate. For example, Kaitlin, a straight Latinx complainant who reported sexual assault and whose Title IX investigation was still open, recalled:

I reported to Title IX 4 days after it happened. Nothing happened until I had to go on Twitter and basically put everyone on blast. Since it went viral everyone was tagging the school and our school’s president which is why it got picked up almost 3 months after.

Kaitlin’s efforts, while effective, forced her to out herself as a survivor and deal with the added stress of publicity. Forcing students into advocacy roles might come at the cost of giving them the space to process their emotions — most of Kaitlin’s survey response focused on how she fought for her rights, not on how the Title IX process made her feel.

Overall, complainants in the survey categorized the Title IX process as emotionally draining, frustrating, and painful. Even complainants whose hearings resulted in the respondent being expelled, the most severe available penalty for a Title IX case, frequently referenced the Title IX process leading to more depression and anxiety like what scholars have found in the criminal justice system. No complainants described the Title IX process as an emotionally positive experience overall.

Respondents

Respondents also reported negative feelings resulting from the Title IX process. Many respondents echoed Anna and Nina’s references to feeling “exhaustion.” Brad was a straight White man accused of sexual assault. Brad reported that:

The process was absolutely awful for me … The officials did not respond in a timely manner at all, leaving me anxious for literal months waiting for a response. It was definitely exhausting and not in any way rewarding … This has been by far the worst experience of my life.

Similarly, Nick, a straight Black man accused of non-consensual touching, discussed feeling tired and overwhelmed. Nick said, “The process was overwhelming at first, and without being able to receive counsel from a lawyer, very uncomfortable. It was very exhausting and time consuming having to prepare for your own trial.” Alex, a straight White man who acknowledged responsibility for stalking and harassment, provided an extended explanation about how the Title IX process negatively affected his mental health despite him admitting responsibility:

My investigation took 1.5 years. I had not spoken or seen [the complainant] in over a year and [the school] suspended me on the notion that if I were to run into her on campus that it would create an environment not conducive to her learning … I will never return to that horrible place and my mistake will haunt me for the rest of my life ... I did not feel supported at all. I was not allowed an attorney. It was exhausting and tanked my grades for the 1.5 years my investigation took place. I was suspended 12 weeks into the semester and forced to withdraw right before finals.

Brad, Nick, and Alex all outlined specific procedural ways their schools contributed to their negative experiences. Brad cited the lack of responsiveness from school officials as a negative part of the process, while Nick and Alex cited what they described as an inability to acquire legal counsel.

Unlike complainants, many respondents used legal terms like “due process,” “burden of proof,” and “preponderance of the evidence” when describing their experiences, emphasizing how some respondents seem to have assumed the role of defense attorney. Kyle, a straight White man found responsible for sexual assault, spent a large chunk of his response discussing litigation rather than his emotional experiences. Kyle stated:

I was wrongfully accused. School found me responsible. Their investigation was a sham and they completely ignored my exculpatory evidence. I was not supported at all. I sued the school in federal court and won over lack of due process. They expunged my record and I ended up graduating — but I spent years in therapy over the experience … If schools don’t provide due process, then a real rapist can sue and win. Is that fair?

Like Nick, Brad, and Alex, Kyle referenced mental health issues arising from the Title IX process. However, Kyle’s explanation of his feelings was encased in legal rhetoric like “exculpatory evidence” and “expunged.”

Bias

Both in response to my specific question about bias and unprompted in their answers to the first survey question about experiences with Title IX, many complainants and respondents shared opinions about how they were treated relative to other students. They based these views on a combination of stories from friends and acquaintances, warnings from school administrators, and media coverage about school Title IX processes.

While complainants and respondents both described experiencing negative emotions during the Title IX process, the answers to the survey’s question about bias diverged. Of the complainants and respondents in the survey, 46 addressed how they felt they were treated relative to other students in their long-answer responses. Ten complainants and 1 respondent felt they were treated better than others, 10 complainants and 6 respondents felt they were treated worse than others, 11 complainants and no respondents felt they were treated the same as others, and 6 complainants and 2 respondents did not know if they were treated better or worse than others.

Of respondents who wrote long-answer responses, most expressed feeling they were treated worse than complainants. Nick, for example, argued that:

The Title IX coordinator seems inherently biased against the accused. I don’t believe that the process is fair. Preponderance of evidence generally devolves into guilty before proven innocent. If you cannot gather evidence that undeniably proves you are innocent, there is a good chance that you will be found guilty. The standard should at least be clear and convincing evidence.

Nick’s criticism of preponderance of the evidence, the burden of proof (more likely than not) in many Title IX policies, mirrors a common refrain from opponents of Title IX, who argue that the preponderance of the evidence standard is biased against respondents (see, for example, work by Laura Kipnis or KC Johnson).

Brad described feeling like the process was unfair as well. Brad stated:

It felt like it was actively stacked against me … I do not feel it was fair at all. They felt very biased against me … They definitely treated me worse than the complainant. The investigators were heavily biased for their side, not believing anything I said.

While both Nick and Brad did not provide specific details to back up their assertions, one straight Asian man who was a respondent in a Title IX case, Michael, shared in-depth the difference in how he felt he was treated relative to how he felt complainants at his school were treated:

There was no support when labeled as a respondent, regardless of guilt or not … All answers provided to the respondent are vague … The respondent was also not given all the information about their own case. When asked for specific details involving the case against them, those requests were denied. During every interaction with administration individuals it seems they have already made up their minds about what has happened even without gathering all the information … The investigator only decides to hear the complainant and who they consider as witnesses for the complainant. In fact when asked if they want to hear from the respondent, the reply was that it would not matter … It does not seem fair that even though the investigator did not find a clear violation, they did side in favor of the complainant and enacted punishment to the respondent. All reasonings are based on retellings of situations that are out of their full context. Or what would seem to be normal situations but redefined or worded in a way to fit the narrative of the complaint … As a respondent, it is like not innocent until proven guilty but the opposite way around and even then there was no way out from already being judged.

Under 2011 and 2020 Title IX guidance, respondents and complainants are supposed to be given the same resources as one another, whatever those resources are at an individual school. Michael’s interpretation of what occurred in his case conflicted with that guidance, if accurate.

Complainants described feeling negative emotions because of the Title IX process, but over a quarter concluded that despite this, they were treated the same or better than other students. Eva, the woman who described the process as “awful” and stated that she considered dropping out, said she felt she was treated “the same [as others]. Maybe better?” Anna, the woman who specifically stated that she felt “re-victimized” during the process, later remarked when asked about bias, “Honestly, this is probably roughly the same way they treat any female student with a similar experience.” Sarah, a White queer woman who reported sexual assault and dating violence and whose perpetrator was found responsible, expressed feeling traumatized by the Title IX process, but also thought her experience was better than that of her classmates. Sarah first said that “the process was terrifying and exhausting … In a lot of ways, it felt more violating than the violence I experienced that caused me to report.” Then, when asked about how she was treated relative to other students, Sarah said, “I feel like I probably was treated better than other students, which is wild because they treated me so horribly.”

While many complainants did not disclose how they reached the conclusion that they were treated better or worse than others, most complainants who gave a reason cited hearing other students or staff members discuss the Title IX processes. Natalie, a straight White woman who was a complainant, stated that:

I feel I was probably treated better than survivors on other campuses but that is just based on the stories that I have heard from other survivors on different campuses. As far as whether I was treated better than other survivors on the same campus, no. I think the university is just well advanced and prioritizes the protection of their students.

Other complainants reported hearing negative things from survivors on campus before reporting. For example, one complainant stated she felt she was treated “worse than rapists but probably about the same as other victims. I heard many similar stories from others when I spoke out.” An advantage of people sharing these negative experiences is that sharing can give others reasonable expectations and spur schools to improve. However, students sharing negative experiences with Title IX also deterred some students from reporting. Lila, a queer Latinx harassment complainant, explained:

I did have an advocate appointed by the school after I signed up for therapy … This advocate told me girls rarely report and when they do they receive extreme backlash and possible legal repercussions … I was a bit afraid to report drugging because I had no proof other than witnesses and knew this particular frat had one of the strongest legal teams and often got off on drugging cases. So I was gonna report the fact that he assaulted me (not rape) while incredibly intoxicated and she told me it wouldn’t meet ‘the threshold’ for sexual assault and I shouldn’t report it.

Lila’s story is a testament to how important it is for schools to address secondary victimization in Title IX processes. Title IX reporting is valuable not just for opening investigations, but for giving students access to resources like counseling, academic accommodations, and protective orders. If students hear that the Title IX process is traumatizing, they might be less likely to seek out these resources.

Discussion

The first takeaway from the 46 student narratives analyzed was that no complainants described the Title IX process as an overall positive experience. This was even true for those who explicitly said they chose to report their assault to their school’s Title IX office and had the opposing party expelled. This result was initially surprising given findings by Fisher et al. (2016), who found 48.1 to 64.9% of sexual violence survivors who reported to their school’s Title IX office felt the resource was “very” or “extremely” useful.

However, the phenomenon of complainants minimizing their bad experiences could help explain why students overwhelmingly reported negative experiences in this study and why Fisher et al. (2016) found that many complainants thought their Title IX offices were useful. The complainants in this survey who did claim the process had some upside said this in reference to how they felt they were treated relative to other complainants as a way of minimizing their own negative treatment. Complainants like Eva, Anna, and Sarah feeling that they were treated poorly but still better than others is something I refer to as comparative secondary victimization: the secondary victimization in minimizing negative experiences through comparing one’s secondary victimization to that of another. This appears to be an extension of what Holland et al. (2021) described as “minimization barriers” in their study on student decisions reporting to Title IX offices — survivors being reluctant to report because they worried their assaults did not qualify as “severe enough.” The extension of this phenomenon to student experiences with the Title IX process itself speaks to a parallel between the initial sexual trauma that the Holland et al. (2021) study examined and the trauma of the Title IX process explored in this study. It also provides a potential explanation for the Fisher et al. (2016) results: if complainants minimize how poorly their schools treat them, it makes sense that complainants could call their Title IX offices useful despite having a negative experience.

Complainants and respondents also both expressed more negative emotions about things that, if accurate, would be contrary to Title IX federal guidance and case law. Camille and several other complainants felt like their schools wanted them to provide more information about their assailants than they knew to keep investigations open — however, the burden in a Title IX case is on the school to investigate, not on the complainant to collect evidence, so a school closing a complaint without a thorough investigation is in violation of Title IX. Respondents Nick and Alex both described frustration at being “unable” to have attorneys during the process — while all students have the right to have an attorney during the Title IX process, most schools do not provide attorneys to either party free of charge due to cost; it is therefore generally up to individual students to seek legal representation if they would like an attorney present. It is unclear whether the respondents who said they were unable to have legal representation knew this and were financially unable to obtain counsel, or whether schools incorrectly told them that they did not have the right to obtain their own attorneys. The latter would be contrary to 2011 and 2020 Title IX guidance.

A final trend that was visible in respondent narratives was a dramatic focus on legal language. While it is encouraging that many respondents appear to try to educate themselves on their rights, the way legal language overtook many respondent narratives raises the question of whether respondents can emotionally reflect during the process while simultaneously trying to defend themselves. The legal language in respondent answers outweighed language acknowledging the humanity of complainants or pain about the underlying encounter, leaving the tone of respondent narratives more adversarial.

Many respondents also seemed to only have a partial picture of the legal concepts they referenced, and as a result, seemed to have beliefs about bias in the process that do not line up with empirical research. Most respondents stated they felt preponderance of the evidence was a uniquely unfair aspect of Title IX processes because it put a burden on them to prove innocence. However, preponderance of the evidence is the same burden of proof used in most U.S. civil lawsuits, including civil lawsuits regarding sexual assault, and does have a presumption of innocence — the complainant (or in Title IX proceedings, the school) must prove guilt. Available data on case findings do not demonstrate widespread bias toward respondents in contrast to what respondents reported in their narratives. Less than half of Title IX cases adjudicated through a hearing stage result in a finding of responsibility, with less than a quarter of those found responsible facing expulsion (Richards, 2019). The disconnect between respondent beliefs about bias and the statistical reality of case outcomes deserves future attention, especially because respondents and the families of respondents have the power to influence federal Title IX policy.

Conclusion

This study demonstrates that both complainants and respondents in school Title IX processes can experience negative emotional consequences, and often form opinions about how schools treat other students. While almost all complainants reported experiencing some amount of secondary victimization, many complainants also minimized their negative experiences due to the perception that they were treated better than others, while most respondents argued that they were treated worse.

The student narratives from this study highlight several areas that schools can focus on to minimize negative emotions in Title IX proceedings. Participants on both sides of Title IX processes often felt the process was unnecessarily long and disrupted their lives, something that schools could ameliorate through increasing the number of Title IX case investigators on campus and keeping investigations to a strict timeline in accordance with previous federal Title IX guidance. Respondents often felt like their schools failed to communicate with them effectively, and some claimed to be blindsided with hearing information less than a day before the hearing, which schools could avoid by having frequent communication with students involved in the process. Finally, several complainants described not having access to many of the things that Title IX guidance has prescribed for complainants over the last several years, such as counseling services and academic accommodations; schools should provide these services to students without hesitation. There are real financial barriers that make it difficult for schools to provide mental health counseling or legal counsel at no cost to students, so federal policymakers should look at providing funding for institutions without the financial means to independently fund those resources.

Further research on the long-term effects of comparative secondary victimization is vital for understanding the trauma involved in the Title IX process and establish what effect, if any, comparative secondary victimization has on complainants’ willingness to advocate for themselves. Future research would benefit from analyzing what effect cross-complaints have on student emotional responses to Title IX processes. Finally, future research would benefit from surveying a larger sample of students with more students with multiple marginalized identities. While it is possible that the skewed demographics of this survey were partially the result of a skewed demographic of students going through Title IX processes, it is probable that the relative absence of trans and genderqueer students and complainants of color (particularly Black and Native American complainants) was at least partially due to a shortcoming in recruiting efforts. Previous research on campus sexual violence has demonstrated that schools often overlook how sexual violence uniquely affects those with multiple marginalized identities (Cantalupo, 2019; Harris & Linder, 2017; Roskin-Frazee, 2020), making the inclusion of those students’ voices in Title IX research critical.

As many survivors decide against using law enforcement to hold those who cause sexual harm accountable, it is important that schools work to ensure that alternate accountability systems do not mimic the most negative parts of the criminal justice system. Right now, the Title IX process appears to fall short of that goal.