Student survivors of sexual assault will soon be cross examined in live hearings
College students who have reported sexual assaults will be called to answer questions in a live hearing from the very people they’ve accused of abusing them — a significant change that critics say turns a classroom into a courtroom.
The Jan. 4 ruling in a lawsuit filed by a male undergraduate USC student against university administrators has immediate repercussions for dozens of students across the state whose reports of sexual harassment, assault or rape are currently under investigation.
In the lawsuit, the student sought to overturn his expulsion from USC after school administrators found he violated campus code, determining that sex he had with a woman was forcible and non-consensual.
Judge Thomas L. Willhite held that when a student accused of sexual misconduct is facing severe disciplinary sanctions, like expulsion or suspension — and the credibility of witnesses is central — a fair process must include a live hearing where parties may cross-examine each other.
While the case was taken up against a private school, the ruling defines requirements for a fair disciplinary hearing at private and public schools, potentially shaping hundreds of investigations a year across campuses statewide.
Victim advocates worry that implementing the policy will result in fewer students reporting sexual assault and rape, compounding the existing problem that most attacks go unreported.
Converting ‘classrooms into courtrooms’
The ruling follows a national trend toward requiring live hearings in administrative procedures on campuses — a practice that college administrators say is traumatic for both the accused and the accuser and fails to reach the truth.
“The courts have long held that we are not required to convert our classrooms into courtrooms, and yet that seems to be precisely what they are doing here,” said Leora Freedman, deputy general counsel for the California State University.
The shift has been celebrated by those who feel the rights of the accused have been sidestepped in educational settings. Victim advocates say that adopting criminal proceedings in campus investigations is traumatic and chill the reporting of campus sexual abuse.
Morgan Dewey, with the organization End Rape on Campus, put it plainly: “This policy change makes schools less safe for survivors and easier for students to get away with sexual assault.”
“(For survivors) to know that they would have to sit through a live hearing with a rapist is terrifying and traumatizing and will definitely curtail reporting on campus,” Dewey said.
State Sen. Hannah-Beth Jackson, D-Santa Barbara, echoed those concerns and said she hopes the decision is challenged to the California Supreme Court for that very reason.
“Clearly we need to respect one’s constitutional right to due process,” said Jackson, who recently introduced state legislation on the issue. But, she added, there is a difference between a criminal proceeding, where the accused’s personal liberty and freedom is at stake, and an administrative hearing.
“To conflate them is the height of misogyny and sexism. We do want to provide due process,” Jackson said. “There is a way to get there without discouraging victims to come forward.”
The change is separate from the controversial federal regulations proposed by the U.S. Department of Education under Secretary Betsy DeVos, which also propose live hearings during Title IX investigations.
Coming soon: live hearings at CSU and UC schools
The court ruling means that in many cases where a student is accused of engaging in sexual activity without affirmative consent, a live hearing must be held. About 500 investigations a year across the 23 campuses in the CSU system would likely meet the judge’s criteria requiring a live hearing, administrators said.
That’s because credibility of witnesses or the reporting party is often central in accusations of sexual assault or rape, where the question is often about consent and there is no smoking gun as evidence.
The effects of the state court decision were immediate.
California State University and University of California administrators are responding by drafting new interim policies to put into action on dozens of campuses across the state within weeks.
They’re preparing to hire and train staff to oversee hearings in future cases, as well as in approximately 75 investigations that are currently open on CSU campuses, even though they don’t necessarily believe hearings are the right approach.
“Our priority at this point in time is to ensure that we align our policy with the recent mandate and ensure a fair process without additional trauma for any of our students,” said Linda Hoos, CSU’s Title IX compliance officer.
What a live hearing will look like depends on what system is adopted.
Federally proposed changes would allow for the accused student or an adviser of the accused, like an attorney, to directly cross-examine the reporting party, an idea that evoked strong reactions from student groups, university systems and advocates across the country.
California state courts allow the questions to be asked by a neutral party like a hearings officer — an option both UC and CSU administrators said they will implement to protect students.
They’re also considering the possibility of the parties participating from separate rooms.
“The idea of a live hearing may be intimidating to some students, particularly those who attend schools like UC that have been using an investigator model to resolve complaints,” said Suzanne Taylor, the UC system’s Title IX coordinator.
“In light of the recent case law, it is UC’s responsibility to now carefully and thoughtfully develop a hearing model that is fair, treats both parties with respect and compassion, and results in just and reliable outcomes.”
The Tribune contacted several campus administrators across the state, including UC Berkeley, Chico State, Fresno State, Stanislaus State and Cal Poly in San Luis Obispo — all of whom said they are awaiting direction from their chancellor’s offices, even as some ongoing cases have been put on hold.
Student rights and Title IX investigations
Currently, UC and CSU policy use a single investigator model, in which an official investigates an accusation of sexual misconduct and issues a findings report without a hearing. That process falls under the purview of the Title IX office.
Title IX, a federal law adopted under the Education Amendments Act of 1972, says that “no person shall be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”
Under Title IX, schools are required to address sexual assault and harassment, which is prominent on college campuses — some surveys have found 1 in 4 women is assaulted in college — and most instances go unreported, according to the U.S. Department of Justice.
How schools investigate allegations of sexual misconduct by students or faculty is often in flux thanks to changing court rulings.
Currently at California schools, an investigator who has received a complaint looks at evidence and provides a report to each party so they can respond. In this administrative process, an accused student will be found to have violated university policy if the allegations of sexual misconduct are substantiated by a preponderance of the evidence.
Campus administrators said the process was developed in response to previous court decisions and with young students in mind, to produce a less adversarial and hostile situation in an educational environment.
The recent court ruling says that the process, which is used at USC, is fundamentally flawed, as it gives the accused student no right to confront his or her accuser.
The potential effects to the accused are serious, the court said, as “a student’s expulsion for a sexual offense can have a lasting impact on his personal life and educational and employment opportunities.”
Willhite’s ruling says that previous courts determined that fair hearing requirements are flexible, there are no rigid procedures, and that hearings “need not include all the safeguards and formalities of a criminal trial.”
Even so, fairness requires that the accused be given a meaningful opportunity to present their case.
The judge points to a spate of recent cases that have attempted to clearly define a fair hearing when the resolution depends on witness credibility. He agrees with recent case findings that “where credibility is central to a university’s determination, a student accused of sexual misconduct has a right to cross-examine his accuser, directly or indirectly, so the fact-finder can assess the accuser’s credibility.”
Recognizing that there is a risk that “an accusing witness may suffer trauma if personally confronted by an alleged assailant at a hearing,” the court says there are options: The accuser could be present through video conference, for example.
“When credibility of witnesses is essential to a finding of sexual misconduct, the stakes at issue in the adjudication are high, the interests are significant, and the accused’s opportunity to confront adverse witnesses in the face of competing narratives is key,” the court ruled. “Under such circumstances, the performance of this key function is simply too important to entrust to the Title IX investigator in USC’s procedure.”
Victim advocates are concerned that introducing a live hearing will undermine the intent of campus Title IX offices, which hold the responsibility of ensuring equal access to education despite gender.
“Title IX was instituted almost 5 decades ago to protect equal access to education,” said Dewey, with End Rape On Campus. “Requiring live hearings will silence reporting and sweep sexual violence under the rug, barring the route for survivors to access their education and denying them their Title IX rights.”
Federal Title IX changes on the horizon
As California schools write new policies to adjust to the recent court ruling, they’re bracing for even larger changes on the horizon.
Proposed federal changes have prompted outrage by many and praise from others, and more than 100,000 filed public comments. The new rules would narrow the definition of sexual harassment and eliminate the university’s responsibility for investigating assaults or harassment off-campus, where most incidents occur.
Many of the comments submitted rail against the idea of live hearings.
Here’s what members of a sorority at UC Davis had to say:
“Enduring sexual harassment is traumatic on its own, but being forced to recall the event repeatedly with detailed questioning may pose even more damaging for the victims’ well-being and ability to recover. As it stands, victims are discouraged from reporting by the distress that comes with explaining and reliving the accident repeatedly.”
UCLA student Arden Dressner Levy wrote in a public comment that “too many of my friends have been sexually harassed or assaulted and then subject to the already-archaic Title IX regulations and proceedings. “
“Live hearings should not be mandatory. ... I could never imagine going through a live hearing after such a traumatizing experience, and there should be options for a survivor beyond this, such as restorative justice practices,” Levy wrote.
New federal standards likely won’t be implemented this year. In the meantime, lawsuits brought by students who have been accused and those who have made accusations have frequently forced changes to the dynamic Title IX process.
‘How many drinks did you have?’ — traumatic memories have gaps
Campus administrators are concerned about changes that inject a criminal process into an educational environment, particularly because of the affect of trauma on memory.
“We want to make sure the process is fair and that we get to the truth of what happened. We are concerned by the court’s conclusion that cross-examining students in a hearing is the best way to get to the truth in cases involving sexual misconduct,” said CSU attorney, Freedman.
She defended the current process used by CSU campuses. “We continue to believe that investigators can effectively gather the facts and get to the truth by questioning witnesses in a private meeting,” Freedman said. “Trained investigators know how to ask questions and challenge witnesses in a way that minimizes trauma and anxiety.
“Adversarial cross-examination of college students in a court-like hearing about very personal and upsetting experiences (about which they often feel shame) is not the best tool to reach the truth,” she said. “The experience is traumatic both for the reporting party and the accused,” Freedman said.
Data show that sexual violence victimization often causes short-term and long-term health implications, including confusion, fear, self-blame and post-traumatic stress disorder, which can lead to emotional detachment, flashbacks and sleep disturbance, according to the Centers for Disease Control and Prevention.
Further, experts on the psychological impacts of sexual assault understand that traumatic memories have huge gaps, and it’s worse when alcohol is involved.
“Ignorance of how memory works is a major reason why sexual assault is the easiest violent crime to get away with, across our country and around the world,” Jim Hopper, an expert on psychological trauma, said in testimony that was excluded from the Supreme Court Judge Brett Kavanaugh nomination hearings.
Jackson, the state senator, added it’s impractical to insist that someone’s memory be clear and accurate on every detail about a traumatic incident.
She offered a scenario of the questioning of a student who remembers she felt hazy at a party before an attack.
“‘How many drinks did you have? Describe the men, describe what they were wearing. Describe what they did four minutes beforehand.’ You don’t remember that. What you do remember is that four men pulled on your pants and raped you,” Jackson said.
Requiring a victim to respond to those questions at a live hearing “is going to discourage women from coming forward,” she said.
Still, the language from the court is clear.
“We hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross–examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments,” the decision reads.
For now, without that process, a court could determine that the accused student was denied a fair hearing and overturn any disciplinary action.