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A Probabilistic Analysis of Title IX Reforms*

In 2011, the Office for Civil Rights made substantial changes to the regulations governing campus sexual assault investigations. These changes were the subject of significant controversy, and in 2017 the Department of Education issued further guidance, contravening some— but not all—of the 2011 reforms. In light of this action, regulations governing campus sexual assault investigations continue to be the focus of intense debate, and their future is far from certain. Despite this sharp disagreement between supporters and opponents of the reforms, a general consensus has emerged on one key aspect: The 2011 reforms unequivocally benefited sexual assault victims and unequivocally harmed sexual assault perpetrators. In this Article, we challenge that consensus. Drawing upon insights from Bayesian epistemology, we argue that the true effects of the 2011 reforms were far from uniform. In certain situations, accusers benefitted, but in other situations, those accused of sexual assault benefitted. Although this result may seem evenly balanced, the precise distribution of benefits and harms is concerning. Specifically, our analysis reveals that the benefits were most likely to accrue to guilty defendants and lying accusers and that the harms were most likely to fall upon innocent defendants and truth-telling accusers. This outcome runs counter to the goals of any just or reasonable adjudicatory system and calls into question the efficacy of the campus sexual assault reforms. In addition, these same findings indicate that certain aspects of the 2011 reforms left in place—and in some cases accentuated—by the 2017 guidance may make it even more difficult for victims to obtain justice.