The finalized Title IX regulations from the Department of Education are set to come out any week now, and details of what has changed since those regulations were first proposed have been leaking out. One of the most controversial changes to existing Title IX regulations would be to codify the right of accused students to cross-examine their accusers.
In our last post, we went over how this isn't really a “change” to the law – it just recognizes the due process rights of an accused student and explicitly singles them out in Title IX law.
But advocates for victims of sexual assault insist that this is not just a change in the law, but a huge one that will deter victims from coming forward. They act as if their interests are being infringed, and for no good reason. They're wrong.
Victims Advocates: Cross-Examination Forces Victims to “Re-Live Trauma”
Groups that advocate for the interests of victims of sexual assault on college campuses have a talking point. That talking point is that allowing accused students to cross-examine an alleged victim during a Title IX hearing forces that victim to “re-live the trauma of the assault.”
The way they present this slight makes it seem as if colleges allow victims to be mistreated at an evidentiary hearing for no good reason. They present cross-examination as a kind of torture that no victim of sexual assault should ever have to go through, and which is forced upon them for some empty and malign purpose.
This is completely out of touch with reality because it only considers the interests of the alleged victim, at the expense of the rest of the world.
Cross-Examination is Often an Accused Student's Only Defense
Sexual misconduct cases nearly always stem from incidents that happen behind closed doors, where the only people present are the alleged victim and perpetrator. With no witnesses to the alleged offense, the vast majority of the evidence comes from the accuser and the accused.
To say that credibility is important in these cases is an understatement.
In these cases, the accuser's credibility can only be done in a cross-examination. Without being able to cross-examine the accuser, their side of the story is, once presented, untouchable.
An Alleged Victim's Feelings Versus the Ability to Defend
Insisting that protecting an alleged victim from emotional trauma is more important than letting an accused student defend himself is completely unreasonable. It overlooks the intense trauma that students go through when they are accused of sexual misconduct that they did not do, only to find that the only way of defending themselves against the accusation has been taken away from them in order to protect the accuser's feelings.
A federal court of appeals has recognized how unreasonable this is, and the Department of Education, by codifying the right of an accused student to cross-examine their accuser, is agreeing.