Colleges across California are now complying with a Jan. 4 appellate court decision regarding a University of Southern California student accused of sexual assault. The decision holds that “fundamental fairness” requires students who are accused of sexual assault to have the right to a hearing and ability to cross-examine their accusers and potential witnesses in the case.
False reporting falls between 2 and 10 percent, according to the National Sexual Violence Resource Center. For the small percentage of sexual assaults reports that are fabricated accusations, the right to a hearing and a fair trial is crucial. But this comes at a cost to sexual assault victims.
At many universities nationwide, sexual assault investigations are private and contained. The accuser and the accused meet with Title IX investigators separately, and aren’t permitted to interact.
But with this new ruling, it’s up to the accused to decide whether or not they cross-examine their accuser, which can happen either in person or through a neutral factfinder. The accuser has no choice in whether their alleged assaulter gets to look them in the eyes while discussing the details of the case.
Reliving assault can be a highly traumatic experience and it can be brought about by rehashing the details. It can be difficult enough for sexual assault victims to even muster up the courage to report – and knowing that the accuser or their representative has the option to confront them could push victims back into silence.
770 out of every 1,000 sexual assaults go unreported, according to the Rape, Abuse and Incest National Network. Broken down, only 32 percent of victims overall report their assault, and that number drops to 20 percent for college students.
A fair hearing and the opportunity for someone accused of a crime to be innocent until proven guilty is crucial. No one should be denied that. But this ruling puts the burden for a fair hearing on students who are in a vulnerable position – and that should never happen.
A 2011 Dear Colleague letter written during the President Barack Obama administration set forth guidelines in which the accused and accuser would be able to question one another, but not in a live setting. In fact, the letter discouraged it.
Campus sexual assault cases are high stakes for both parties, but a fair hearing process is still possible without the confrontational nature of live questioning. Just like an accused student shouldn’t have to give up their right to defend themselves, an accuser should not have to be subjected to the potential trauma of cross-examination.
Chapman is not at fault – this is a statewide ruling, and schools that receive federal funding can’t refuse to adhere to these changes. But the Department of Education – and the appellate courts upholding these decisions – need to consider whether this decision is really in the best interest of the students they represent.