By Ronald Trowbridge
The Office of Civil Rights within the Department of Education has issued a new policy for public scrutiny on adjudication of sexual assault. That policy incorporated the September decision of the federal 6th Circuit Court of Appeals’ Roe v. Baum decision that required that students accused of sexual assault be permitted-cross examination as a constitutional right. The court argued, “not only does cross- examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.” The court also cited a legal scholar who described cross-examination as the “greatest legal engine ever invented for the discovery of truth.”
There were four shortcomings of the earlier policy on sexual assault. One, decisions could be based on a “preponderance of evidence” that holds that it is “more likely than not” that the accused is guilty. The standard of “more likely than not” requires a 50.01% likelihood of guilt. Two, the earlier Title IX required that schools designate a Title IX Coordinator, who would have the power alone to adjudicate sexual assault complaints. Three, the words “due process” did not appear in the earlier policy. Four, that policy was silent on recourses available to the accused.
At the Lone Star College System in Texas, with 100,000 students, I was a trustee helping the administration design a fair system of adjudication for sexual assault. We did a fair job. We handed adjudication of all sexual assault cases to an outside retired federal judge or criminal attorney. We required written statements from the accuser, from the accused, and from student services. Both the accuser and the accused then testified before the judge, independently if requested. Prior to the hearing by a third party, the accused was given a written copy of the complaint. An attorney could represent the accused in the hearing room. Both parties could bring evidence to the hearing, e. g., character references and the like.
In a later revised policy, the college allowed both sides to submit cross-examination questions to the judge, who would decide if such questions had probative value. The judge then would ask the questions, not either party. The September Roe v. Baum decision and Office of Civil Rights now require the following radical changes: grievance procedures must include live cross-examinations at the hearing. These cross-examinations are to be conducted by the parties’ advisors, who may be attorneys. If a party does not have an advisor, the institution is required to provide an advisor aligned with that party to conduct the cross-examination. If a party requests a separate room during cross-examination, then the institution must ensure that the decision-maker and other party may hear and see the cross-examination by means of live-streaming.
I would predict that an unknown number of women will not file sexual assault complaints, owing to the fact that, one, they will be cross-examined; two, by an advisor for the other side; three, in the presence of the accused via live-streaming. It is a well established fact that many women elect not to go forward with charges of sexual assault. This new cross-examination requirement will exacerbate that hesitancy and rejection. But it’s mandated by Roe v. Baum and the Office of Civil Rights, which carries the force of law by dint of denying federal funds for noncompliance. Will the matter be appealed to the U. S. Supreme Court, where five justices are now conservative? Adjudication, though, is now closer to due process than it was.
Ronald L. Trowbridge, Ph. D.
Chief of staff for Chief Justice Warren Burger, and staff director of the presidential Commission on the Bicentennial of the U. S. Constitution