Common sense proposal assures due-process for accused, as well as accusers, in college sex abuse cases
Secretary of Education Betsy DeVos took an important common sense step on Nov. 16, in releasing proposed new rules for adjudicating campus sexual-misconduct cases. However, to hear the liberals’ reactions, you’d think we were back in the Brett Kavanaugh hearings.
And, like the opponents of the then-nominee to the Supreme Court, critics of DeVos’ proposal to restore the right of cross-examination in handling accusations of sexual abuse on campus are aghast at the very idea that those who accuse others of sexually abusing them should be held to the same due process as those being accused.
Former Vice President Joe Biden said on Facebook the proposal “would return us to the days when schools swept rape and assault under the rug and survivors were shamed into silence.”
“Betsy DeVos, you won’t get away with what you are doing,” tweeted Rep. Maxine Waters, D-Calif. “We are organizing to put an end to your destruction of civil protections for students.”
But DeVos’ proposals are none of that. Her new rules would legally require schools to respond to complaints filed with their Title IX coordinators or other officials authorized to take action. Schools need only respond if an alleged incident occurs on campus or in areas the school oversees.
Key requirements in the proposals are that universities hold live hearings on accusations, and allow representatives for the accused, as well as the accuser, to cross-examine each other. That is a legal precedent set when the U.S. Sixth Circuit Court of Appeals this fall ruled in an assault hearing involving the University of Michigan that the only way to be fair would be to have both sides square off face-to-face.
We agree with DeVoss’ premise in her proposals, that if someone accuses someone else of sexual assault, that person should have the right to question their accuser.
Under former President Obama’s Department of Education, sexual harassment was defined more loosely as “unwelcome conduct of a sexual nature,” and many basic protections for the accused were discarded.
Attorney Justin Dillon, a partner at Kaiser Dillon PLLC, in Washington, D.C., wrote in a column for The Chronicle of Higher Education, that his firm has represented more than 100 students and professors, at more than 80 institutions across the country on both sides of the issue. “And I can say, without qualification,” he wrote, “that these rules would be a significant step forward for both sides.”
Colleges would give accusers a choice of which form of resolution they would prefer, and they would be expected to provide supportive measures to the accuser, even when no formal complaint is filed.
And as for the accused, as noted previously, colleges would permit cross-examination by the person’s adviser in disciplinary hearings.
Some people, writes Dillon, “are outraged at this, arguing that any such questioning would ‘retraumatize’ accusers. But in a system that places the burden of proof on an accuser — which is how we do things in America — there’s no way around that.”
Secretary DeVos’ proposal creates a balance between protecting victims and the rights of the accused, says the Wall Street Journal. The proposals include “the right of every survivor to be taken seriously, and the right of every person accused to know that guilt is not predetermined.”
But that won’t quiet the anti-Kavanaugh crowd who demanded that the accused judge prove his innocence despite the lack of evidence against him.
The new guidelines are now in a 60-day comment period, and the department of education is obligated to respond to the public comments. But while we support this effort at fairness and justice, don’t expect the rules to take effect without a battle.