New Trump administration rules on sexual assault silencing survivors

November 27, 2019 4:38 PM

Some fear the rules, soon to be finalized, will essentially destroy the process of campus Title IX hearings. The final rules, expected to be released before the end of the year, are likely to include a controversial provision requiring schools to allow in-person cross-examination of students who report assault and harassment, as well as accused students. Many activists, as well as school administrators, say cross-examination is traumatic for a survivor of sexual violence; Jordan Draper, assistant vice president for student affairs at the College of New Jersey, called it “completely terrifying” in an interview with Vox earlier this year. She and others say their schools may have to scrap formal sexual assault hearings entirely if cross-examination is required.
posted by Homo neanderthalensis (22 comments total)

Although it's easy to blame DeVos and the Trump administration for Title IX requirements, they are not acting in isolation here. The First Circuit and Sixth Circuit are currently split on cross-examination as part of due process. Roughly, the Sixth Circuit has ruled students in sexual misconduct cases must be allowed to cross-examine accusers as part of due process (and hence, required regardless of Title IX). The First Circuit opened the door to a cross-examination by an independent examiner as an alternative. As a result, we may see this decided by the Supreme Court.
posted by saeculorum at 6:19 PM on November 27, 2019 [8 favorites]

Can't imagine how our newest member of the Supremes would rule on this...

May not have originated in the Trump camp but the cruelty has to give them joy.
posted by nofundy at 6:58 PM on November 27, 2019 [5 favorites]

This is a more general rant, but as someone with literally no dogs in this fight beyond being American, I have this to say: I grew up with abortion rights recently won, and saw things like all-day abortion protests and fake-ass "pregnancy counseling clinics" blossom into the shitshow of copypaste "stunt" term-limit legislature actually becoming law today, and abortion access drop to one or even no clinics per state, alongside terrorists who snipe doctors for daring to perform legal procedures. I saw the fight for gay marriage blow up, win, and now the Trump backlash doing the thing where the right wing anti-happiness hate brigades sound out what approaches will work to shut down LGBTQ rights, and I think, before long, we'll see America's hate machines start to churn it out en masse for state governments to institutionalize their hate where the Supreme Court will conveniently decide to not touch it. And recently, I've seen trans rights people building Rube Goldberg machines to churn out rhetorical approaches that resonate with people who aren't Christian sociopaths. Things like the FPP are a part of that. This is just the first wave of opportunistic legislative attack.

Can't imagine how our newest member of the Supremes would rule on this...

I can. The playbook is to have the SC change precedent to punt to the states, then grind it ("it" being real people) down locally.

I don't know where to go or who to talk to who is on the right side of history to fight these people at the long timeframe they play the game at. I don't have a religion to rally around. I have the fact that I felt like a freak in high school once for five minute and that was enough. No one deserves this shitbag discrimination they sell. Fuck you, Republicans.

Who can I donate to, protest with, volunteer for, all of it. Help out a bro who wants to spit this back in their face.
posted by saysthis at 9:46 PM on November 27, 2019 [20 favorites]

Holy cow, saysthis. You nailed it. It's so depressing to see this happening, *know* it is happening, and see the people around you (esp younger LGBTQ+ folk) falling for what, to you, is obvious religious right propaganda but designed to sound reasonable and not like obvious hate speech to people who would never support these positions if they knew where they came from. If you figure out who to donate to or protest with, let me know. Just because a majority of people believe something does not make them right, my high school self who got bullied for talking to the one out gay girl in the locker room knew this.
posted by subdee at 10:38 PM on November 27, 2019 [6 favorites]

And recently, I've seen trans rights people building Rube Goldberg machines to churn out rhetorical approaches that resonate with people who aren't Christian sociopaths.

What does any of this mean?
posted by Dysk at 1:49 AM on November 28, 2019

And recently, I've seen trans rights people building Rube Goldberg machines to churn out rhetorical approaches that resonate with people who aren't Christian sociopaths.

... I, too, would like clarification on this one.

You might charitably interpret it as "people whose pet issue is attacking trans rights", but that is meeting more than halfway.
posted by kafziel at 2:50 AM on November 28, 2019 [3 favorites]

I’ve never understood how schools have jurisdiction over crimes. If someone was murdered on campus would the school investigate and judicate that?
posted by zeikka at 3:09 AM on November 28, 2019 [9 favorites]

I’ve never understood how schools have jurisdiction over crimes.
For a few reasons.
One is the idea that victims are more likely to approach their college or university than the local police.
Another is that residential campuses tend to have a high standard of care. (Not all institutions are residential, but commuter schools also have a version of this while folks are on the grounds)
Plus the long-standing sense of higher ed as a kind of separate space.
posted by doctornemo at 3:42 AM on November 28, 2019 [2 favorites]

We're not talking about criminal jurisdiction, are we? As I understand it, a university can't impose a criminal punishment; it can only expel students or impose conditions on their future studies. So these changes aren't about guaranteeing civil rights for students accused of sexual assault: they're about burdening what would ordinarily be a private organisational decision with a process imported from criminal law. I mean, surely the people behind this wouldn't give regular employees the right to cross-examine their accusers before being fired.
posted by Joe in Australia at 4:38 AM on November 28, 2019 [12 favorites]

Correct. The universities aren't asserting state power in that sense.

So these changes aren't about guaranteeing civil rights for students accused of sexual assault - they are about trying to provide some justice and student support.
posted by doctornemo at 6:11 AM on November 28, 2019 [1 favorite]

they are about trying to provide some justice and student support.

Cross-examinations of students who have been victims of sexual assault is "student support" now?
posted by Dysk at 6:59 AM on November 28, 2019 [1 favorite]

@Dysk: A defendant in a court case has the ability to defend themselves. You're starting under the assumption that the accused is guilty and barring definite evidence, you're removing a defendant's right to defend themselves.

Does anyone have the statistics regarding the number of verified cases of sexual assault? There's been some serious false accusations, and maybe they get amplified, to throw out Title IX judgments. An innocent defendant found guilty under Title IX but that then has their court challenge ruled in their own favor has their own life derailed based off the false accusation.
posted by DetriusXii at 8:12 AM on November 28, 2019

A university disciplinary hearing is not a court case.
posted by Dysk at 8:17 AM on November 28, 2019 [13 favorites]

Title IX proceedings are not comparable to private employer disciplinary proceedings. Colleges and universities are compelled to enforce Title IX by the federal government and in so doing they are acting as effective arm of federal civil rights law enforcement. There's nothing special about this: pretty much any recipient of federal dollars agrees to provide at least the first layer of enforcement of federal laws relevant to the purposes of that funding.

There is also no controversy that this means that accusers and accused have some form of due process rights.

For years the decision of what kind of due process was pretty much left up to colleges and universities, and resulted in a hodgepodge of procedures, albeit with a very strong trend in recent years towards reducing the due process rights of the accused.

Courts and the US Department of Education heavily intervening is the more recent development. DeVos is using the precedent for administrative intervention the Obama Administration created.
posted by MattD at 8:19 AM on November 28, 2019 [2 favorites]

"Some kind of due process" does not and should not include cross-examinations of students who have been victims of sexual assault. You do not need to assume guilt to know that this will be inevitable outcome of allowing it in all cases. I am not presuming guilt in any one case - simply stating that in aggregate, unless you believe there will never be a legitimate victim, this will lead to the cross-examination of victims of sexual assault.
posted by Dysk at 8:22 AM on November 28, 2019 [11 favorites]

And recently, I've seen trans rights people building Rube Goldberg machines to churn out rhetorical approaches that resonate with people who aren't Christian sociopaths.

... I, too, would like clarification on this one.

You might charitably interpret it as "people whose pet issue is attacking trans rights", but that is meeting more than halfway.
posted by kafziel at 6:50 PM on November 28 [3 favorites +] [!]

Yeah sometimes I get mad and drinky and yell at the internet and leave out key words. Gotta work on that habit. "And recently, I've seen anti-trans rights people building Rube Goldberg-esque fake excuses to limit trans rights that resonate with people who aren't Christian sociopaths, like pedophiles lurking in every bathroom."

^^^that.
posted by saysthis at 9:30 AM on November 28, 2019 [12 favorites]

Any argument about sexual assault that contains the words "false accusations" is standing on a tiny boat with a thousand enormous holes in it. Maybe don't go there.
posted by seanmpuckett at 9:44 AM on November 28, 2019 [19 favorites]

I think it's meaningful that substantial criticism has been raised against the fairness of Title IX proceedings. CBS News, The Chronicle Review, The Atlantic, Inside Higher Ed, Washington Post. As Jeannie Suk Gersen puts it in The New Yorker (also linked in the Vox piece): "In recent years, it has become commonplace to deny accused students access to the complaint, the evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses".

While I don't think fairness demands a direct interrogation of the accuser by the accused, not providing access to the identity of the accuser, or to the complaint, and not providing for any kind of cross-examination seems obviously unfair to me. While Title IX proceedings are not settled in court, that does not mean that fundamental principles of fairness shouldn't apply. Anything less undermines & delegitimizes the process.
posted by dmh at 11:17 AM on November 28, 2019 [2 favorites]

How are we going to undo all the damage this administration's wrought? There's so much.
posted by pelvicsorcery at 11:36 AM on November 28, 2019 [1 favorite]

I think it's meaningful that substantial criticism has been raised against the fairness of Title IX proceedings. CBS News, The Chronicle Review, The Atlantic, Inside Higher Ed, Washington Post.

A lot of that linked criticism, however, seems to be that the proceedings are too confrontational and legalistic, which these rules seem likely to further aggravate. The CBS piece in particular highlights the harms from the existing Title IX proceedings to victims, which these changes will only make more severe.
posted by Not A Thing at 1:27 PM on November 28, 2019 [6 favorites]

So I think - as a sexual assault survivor myself - that one of the things I personally struggle over is how to make proceedings around excluding people from spaces fair, while protecting the needs of the most vulnerable people involved. I’m not familiar with Title IX hearings, but one of the things I do struggle over is the fact that in many ways, the way this is generally handled is as an individual harmdoer issue rather than a structural issue. What needs to happen to keep more women safe from assault is not always punitive processes that cause people to be less willing to come forward and cause harmdoers to have nothing to lose.

I don’t trust the Trump administration’s supposedly disinterested motives on this. But I think it’s possible there are problems in the process because everyone’s processes have problems and I’ve never even heard of a perfect one.
posted by corb at 1:47 PM on November 28, 2019 [4 favorites]

There's something rather odd about this whole setup.

In that CBS piece, attorney Brenda Adams describes the Title IX process as an investigation of "school misconduct." But the funny thing is, most non-state schools provide only the barest minimum of procedural protections for allegations of other school misconduct such as plagiarism or cheating. To take a couple of easily-googled examples, neither Georgetown's Honor System procedure nor Whitman College's academic dishonesty process provide any opportunity for the accused to do more than present their own side of the story and hope for the best. There is no provision for witnesses to even be questioned at a hearing, let alone cross-examined, nor for the accused to be represented by counsel.

TBH, that's rather problematic, because (in contrast to the situation with sexual assault) the rate of false or spurious accusations of academic misconduct is certainly nontrivial. But nobody's going to the wall to fight for the due process rights of accused plagiarists.

Of course, Title IX is different from these procedures because it is the product of a federal mandate -- because, of course, few if any schools were willing to implement any meaningful checks on sexual assault or harassment until they were forced to do so at lawyer-point. Given that history, we should have considerably less reason to think that colleges will be overzealous when it comes to Title IX complaints, as compared to academic misconduct complaints where no such federal intervention has been required.

But of course, this is only weird if we try to imagine these new rules as any effort to enforce fairness or the rights of students. Viewed as an entirely predictable move by the De Vos administration to further insulate institutional leadership from ever having to acknowledge rampant sexual predation on their campuses, it fits into place perfectly.
posted by Not A Thing at 6:10 PM on November 28, 2019 [7 favorites]