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November 1 2018

New Title IX Rules to Guarantee Right to Cross Examination in Campus Sexual-Assault Cases

by Charlotte Hays

The Department of Education's new Title IX rules will guarantee that anybody accused of sexual assault on any campus receiving federal funds will have the right to cross examine the accuser, according to a story in the Wall Street Journal.

The new rules, expected to be issued sometime this month, will mark a dramatic shift from guidance provided by the Obama administration.

Not only that, the forthcoming federal rules also, according to the Journal, are stronger than a draft leaked during the summer. Those earlier guidelines gave colleges and universities the option of letting the accused cross examine the accuser. But the school did not have to allow cross examination.

In effect, the new rules will go a long way towards restoring due process, which was sorely lacking under the Obama-era guidance.  Cross examination is an established part of the western legal tradition. But there are already critics of the planned return to due process:

Anurima Bhargava, a former Obama Justice Department official who oversaw civil rights enforcement in educational settings, said the Obama administration discouraged the use of cross-examination because it could make sexual-assault victims reluctant to come forward.

“If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” she said.

Of course Bhargava is right. It can be painful to be cross-examined, but cross examination is also often eseential to finding the truth.

The new rules do have provisions to make the process less painful for the accuser:

The current version would make a cross-examination provision mandatory, though questions could be funneled through a neutral party and students could be seated in separate rooms. The rules would also bar accused students from asking their accusers inappropriate questions, such as details of the accuser’s sexual history.

Rape is a heinous crime. It might be that, when accusations are made, they should be turned over to law enforcement, which is more equipped to handle such cases than college administrators.

The guilty should be punished but first their guilt must be adjudicated. Sad as it is, sometimes false accusations are lodged. Here is where due process is essential.  It appears that the new rules will restore due process.



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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