Guilty until proven innocent. Forget due process, it barely exists. Cross-examination of your accuser, forget about it. Am I speaking about the criminal justice system in Russia? No, I am speaking about the Title IX hearing held on college campuses around the country for allegations of sexual misconduct. Let me repeat that last part, “allegations of sexual misconduct”.
The first time I assisted someone with a university hearing for allegations of sexual misconduct I was blown away. Notice I said “assisted someone”. You see, at these hearings they did not allow an attorney to speak or present evidence or be present in an advisory capacity. The accused had to defend him or herself. Certainly, it makes sense that an 18 year old kid would be expected to conduct a hearing that had ramifications for the future of their education much less the rest of their life. Additionally, the accused could not ask the accuser questions. The person who is making accusations, very serious accusations was free from having to answer any questions from the accused. And the standard of proof? Preponderance of evidence, which means that they were more likely than not to have committed the infraction.
Thankfully, some of these rules have been amended and will be going into effect in August of 2020. The U.S. Department of Education has issued the final version on how schools handle allegations of sexual harassment and assault. The new rules allow for the accused and the accuser to submit evidence and participate in cross-examination in live proceedings.
The provision allowing for cross-examination of the accuser is already drawing criticism from victim’s rights groups. They fear that allowing the accuser to be questioned will have a chilling effect on a victim willing to come forward with accusations of sexual misconduct. While victim’s rights are important, a more balanced approach to these proceedings were needed. In a statement released by the Department of Education Secretary Devos said “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.” I think that is all anyone could really ever ask for, support the victim, but make sure that the accused is treated fairly.