Revised assault rules debated
Posted November 20, 2018 7:30 a.m. EST
ALBANY, N.Y. _ Darlene had to wait three years before the classmate whom she accused of raping her was expelled from their upstate college. She graduated in 2017 and has since moved on with her life.
But the expulsion might not have happened if a new rule proposed by President Donald J. Trump's administration was in effect.
"It sickens me," Darlene (not her real name) said of the prospect that she might have been cross-examined by her attacker during the campus disciplinary hearing that was convened after she finally gathered the courage to come forward about the attack. She said she might not have come forward at all.
Rape victims and women's advocates are leading the charge against the proposed new rules that would guarantee the right of an accused sex abuser to cross-examine his or her accuser.
Many colleges and universities, though, are still working on their responses to the rules that would go into effect after an upcoming 60-day public comment period.
The changes are part of an updating of Title IX rules proposed by federal Education Secretary Betsy DeVos, who recently announced the proposal.
Many schools this week are formulating their response to the proposal.
"We're in the process of learning more about the regulations and gathering information from our member institutions," said Keith Cushing, vice president for public affairs and research at the state Commission on Independent Colleges and Universities.
State University of New York Chancellor Kristina Johnson noted that SUNY's 64-campus system has web-based tools to support sexual assault victims.
In a prepared news release last week, she added that New York state has stringent laws about reporting such incidents.
Still, some schools already see a raft of problems with the new rules.
The changes could make campus hearings more akin to "mini-trials," said Lois Goland, Siena College's Title IX coordinator, creating a deterrent to people coming forward with complaints and potentially carrying significant legal expenses. (Darlene did not attend Siena College and the attack did not occur there.)
"From what we can see now, we expect that under the new guidelines there would be significant involvement by outside attorneys. Complainants, defendants and witnesses would be subject to cross-examination and the questions would need to come from the adviser/attorney for each of the parties," Goland said. "We're very concerned that this, along with other proposed changes, could be a major deterrent to people reporting assaults or serving as witnesses."
"Also, despite the secretary of education's statement that these regulations would save hundreds of millions of dollars, it is quite possible that their implementation could be very costly and would have a negative financial impact, particularly on smaller colleges," she added.
Title IX is the set of federal civil rights laws designed to guard against sex discrimination in education.
During the Obama administration, the federal Department of Education in 2011 issued so-called "Dear Colleague" letters saying campuses should use a "preponderance of the evidence" standard in determining whether an accused sex abuser was guilty or not. There was no requirement for direct cross-examination.
The new proposed rules represent a pendulum swing in the other direction, giving more rights to the accused and making such cases more akin to court proceedings rather than campus disciplinary hearings.
Defendants would be guaranteed the ability to conduct live cross-examinations, either in person or through a video link.
Victims like Darlene believe the prospect of being cross-examined by an attacker would be too frightening for many, thus deterring them from coming forward in the first place.
Organizations that follow gender and campus justice issues this week are weighing in as well.
"This Administration is committed to protecting the perpetrators rather than the victims of sexual violence," Noreen Farrell, executive director of the Equal Rights Advocates women's equality group wrote on their website on Friday, when news of the proposed regulations came out.
Not everyone agreed with that sentiment.
"Students accused of serious misconduct are entitled to meaningful due process rights, and the proposed regulations include a number of important procedural protections that will improve the integrity of the process for everyone," Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education wrote on the website of that group, which is associated with some conservative causes.
Also weighing in on Twitter was New York Democratic Sen. Kirsten Gillibrand, who said "These proposed rules will discourage survivors from coming forward, and return schools to a time where sexual assault and harassment were swept under the rug."
Gillibrand, who was traveling and could not be reached on Monday, has pushed for legislation that would give police a wider role in campus sexual assault cases and set guidelines regarding positive consent.
rkarlin(at)timesunion.com - 518-454-5758 - Twitter: (at)RickKarlinTU