CSHPE doctoral student Kamaria Porter co-authors op-ed responding to cross-examination requirement in campus sexual assault cases 

In the op-ed, “Why the cross-examination requirement in campus sexual assault cases is irresponsible,” the three researchers draw on their study of how universities respond to complaints of sexual misconduct, examining in particular how administrators balance the Title IX rights of victims against the due-process rights of the accused. They state, “Our research found that it is possible to devise procedures that promote the goals of Title IX while simultaneously affording accused students the opportunity to be heard. Rather than promote these models, however, the new regulations compel schools to allow cross-examination—putting a sizable thumb on the scale in favor of the due-process rights of the accused.” 

As they explain, universities that receive federal funding are required, under the 1972 civil rights law known as Title IX, to promptly and equitably respond to reports of sexual violence. Courts have long held that public universities must provide students accused of misconduct with basic elements of due process. Sexual misconduct matters often place in conflict the civil rights of those who report sexual harm and the due process rights of the accused. The issue of cross-examination highlights this conflict. In 2011, the Education Department’s Office for Civil Rights advised schools against allowing students to personally cross-examine each other during a hearing, citing concerns about potential trauma to survivors. Many schools responded to the informal guidance by adopting procedures in which students did not directly question each other, or by eliminating cross-examination entirely. The rules scheduled to take effect in August would eliminate many of these alternatives.

The authors write, “Experts in sexual violence have amassed considerable evidence that cross-examination in a live hearing can re-traumatize survivors and further deter survivors from reporting sexual misconduct. Research has also shown that aggressive, adversarial questioning is a poor tool for assessing the truth in cases of sexual violence. Universities seeking to respond equitably to reports of sexual violence have strong reasons under Title IX to avoid cross-examination in a live hearing.”

Research by the three scholars authoring the op-ed has uncovered innovative solutions that balance the rights and interests of both parties: “Sixty percent of schools have moved toward models of factfinding and resolution that avoid cross-examination but still afford opportunities for the accused to review and contest evidence.” 

The team concludes, “The Education Department regulations deprive schools of the capacity to innovate those solutions. Congress ought to eliminate this cross-examination requirement and restore a balance between concern for due process and a commitment to promoting gender equality in higher education.”