College students accused of sexual assault must be allowed to cross-examine their accusers, new federal rules will state, according to a new report.
The latest draft of the Title IX rules will replace Obama-era guidelines that were criticized by some for providing accused students with few rights even in cases where the accuser admitted to consensual sex.
Education Secretary Betsy DeVos will likely publish the updated rules in November, reported the Wall Street Journal, citing anonymous sources. Before taking effect, the rules will be subject to a comment period.
The rule changes fall under Title IX, the 1972 law that bans discrimination on the basis of gender in schools that get funding from the federal government.
New federal rules governing campus sexual-assault cases will require that accused students be allowed to cross-examine their accusers https://t.co/uRzDLcfxBw
— The Wall Street Journal (@WSJ) October 31, 2018
An earlier draft of the rules published in September (pdf) “would mandate cross-examination in situations where a school’s adjudication process involves a live hearing, and it would require an effective substitute in all other cases,” reported Reason.
The current version would make the provision mandatory for all situations.
Per the latest draft, the accused and accuser could be seated in separate rooms, with the questions sent through a neutral party. The rules would bar accused students from asking their accusers questions deemed inappropriate such as details of their sexual history.
The rules also limit the scenarios in which schools can pursue investigations into alleged sexual assault.
Anurima Bhargava, a former Obama Justice Department official, argued that the accusers could suffer if questioned at all.
“If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” she told the Journal.
But others said the rules under the Obama administration didn’t provide the due process enshrined in the U.S. Constitution.
“Courts have recognized that cross-examination is an essential part of the process of figuring out the truth in cases where credibility is a factor,” said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, which advocates for more due process for those accused of campus sexual assault.
Some schools have moved toward providing more rights for the accused. On Oct. 25, the University of Michigan said it was revising its sexual misconduct policy to include an in-person hearing where students involved in the investigations could ask questions of each other and witnesses.
“The update to the policy follows a recent ruling of the U.S. Sixth Circuit Court of Appeals that states when credibility is at issue in student sexual misconduct cases, a public university must give the accused student an in-person hearing with the opportunity for the accused student or their adviser to cross-examine the accuser and witnesses,” wrote Dana Elger, public affairs officer for the school.”