On Friday, the Department of Education released its proposal for an overhaul of Title IX procedures. The rules include multiple changes to how schools must prevent sex-based discrimination by narrowly defining sex-based harassment and strengthening due process. For institutions of higher education, where Title IX is invoked to prevent and punish sexual assault and harassment, the changes are dramatic: Secretary of Education Betsy DeVos' proposed rules mandate that, when formally resolving complaints, colleges must hold live hearings and allow both parties the chance to cross-examine testimony. But in sexual assault cases, there's controversy over cross-examination's effectiveness in uncovering the truth.
The department has been working to change schools' obligations under Title IX, the 1972 law that prevents sex-based discrimination in any educational setting that receives federal funding, since September of 2017. Obama-era federal guidelines strongly discouraged allowing respondents to cross-examine complainants, but allowed it to occur. DeVos rescinded those regulations and promised to rewrite them to "do a better job of making sure the handling of complaints is fair and accurate"—and this new rule is the culmination of that policy.
The earlier guidelines came from the Obama administration's Office for Civil Rights, which released a 2011 letter (known as the "Dear Colleague letter") that reminded institutions of their Title IX obligations. If students are unable to access equitable education on their campuses due to sex-based assault, harassment, or discrimination, that's a violation of Title IX, it said, and provided some outlines and best practices for compliance.
But although the Dear Colleague letter and a follow-up from OCR in 2014 gave some guidance, institutions had broad discretion in how they adjudicated sexual assault and harassment. Many colleges adopted a "single investigator" process, where one trained sexual assault investigator collected statements and evidence from the parties and witnesses, then assigned responsibility based on a preponderance of the evidence. Typically, these are private institutions, like George Washington University, the University of Pennsylvania, Harvard University, and Dartmouth College, but some public schools like the University of California–Los Angeles used it too. Others had hearings before a panel that deliberated over the evidence and assigned responsibility; the panels could include faculty, staff, or students, depending on the school. The new rules still allow for one person to conduct the investigation, but another party must review the evidence and assign responsibility.
Specifically, the proposed rules require the option of cross-examination in a live setting through a third party, such as an advocate or a lawyer, and mandate that "if a party or witness does not submit to cross-examination at the hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination."
Recent legal challenges focused on how the models currently in place handle cross-examination. In September, the Sixth Circuit Court of Appeals ruled that a lawsuit against the University of Michigan—which claims the investigator denied a John Doe due process by failing to allow cross-examination—could proceed. Last year, it said the same when it supported a student suing the University of Cincinnati.
The department cited the University of Michigan case, Doe v. Baum, in the new rules, quoting from the ruling: "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."
But in sexual assault cases, inconsistencies are to be expected, experts say, and they don't necessarily mean a witness is untrustworthy.
In many cases, the goal of cross-examination is to ask confusing, complex, or leading questions to impeach a witness' initial testimony—but this can distort even a truthful account. That's because the way people recall traumatic memories can be at odds with the purpose of cross-examination. Our brains tend to encode the most terrifying memories of traumatic events and bring them back to us—especially in the case of post-traumatic stress disorder, where people experience intrusive thoughts and flashbacks to the traumatic memory, sometimes triggered by stimuli in the present. But when all our focus is on the most pivotal moments, it's easy for other details (where something happened, what day it was, and more) to fall by the wayside. The things we pay more attention to, especially negative attention, are more reliably encoded.
In fact, the brain's trauma response—a process that holds true for people with many types of traumatic experience, including survivors of war, rape, or natural disasters—can distort memories while making others clear as day. One of the more common distortions is an inability to recall details in the order they occurred.
A 2015 study that asked if cross-examination could "uncover and correct distorted trauma memories" found that, just like normal memory, traumatic memory is vulnerable to suggestion and misinformation. In an experiment, participants were shown a film of a graphic car crash either in a straightforward or a scrambled order. They were questioned about it immediately after, then 48 hours later in a more confrontational cross-examination style. The cross-examination made both groups vulnerable to disinformation and doubt in their memories, even if they answered correctly before. "Cross-examination is widely considered a safeguard of the judicial process, a tool that boosts the credibility of an honest witness, while diminishing the credibility of the dishonest or genuinely mistaken witness," the authors wrote. "Our results provide further evidence to suggest that it may not always achieve this aim."
These distortions are often about small details, not the central issue of what happened—those traumatic moments encoded in the brain. Typical cross-examination seeks to extrapolate small mistakes into a larger pattern of dishonesty, but in these matters, memory gaps are common.
Research also shows that the manner of questioning affects what survivors of sexual assault disclose and how they do it. Combative, suggestive questioning can make people shut down or guess at details. Survivors of sexual assault report high rates of distress or re-traumatization at the hands of the criminal justice system, especially when cross-examined by the other party's lawyer. The new rules allow each party to have an advocate, who can be an attorney. Complainants could now be questioned by defense lawyers in a manner similar to a criminal trial.
Still, many advocates agree cross-examination is important. Samantha Harris, vice president for procedural advocacy with the Foundation for Individual Rights in Education, a First Amendment and due process watchdog, says mandatory cross-examination procedures benefit complainants and respondents by providing basic due process. She quoted John Wigmore, a legal theorist who famously said, "Cross-examination is the greatest legal engine ever invented for the discovery of the truth." The summary of the rules includes the same Wigmore quote.
Sage Carson, a manager and advocate for youth with Know Your IX, a campus sexual violence advocacy organization, agrees that cross-examination can be a good thing for complainants—when done correctly. "We at Know Your IX are very comfortable with cross-examination occurring if there are proper protections in place for survivors, meaning that you're using a neutral third party, such as a school official, to do the cross-examination, or that both parties have representation," she says.
Until now, most Title IX guidance was sub-regulatory, rather than rules with the force of law. In the new proposal, the Department of Education criticizes the 2011 guidance for not undergoing the public notice and comment period. It also notes the formal rule-making process as a positive aspect of the current proposal, saying "the transparency of the proposed regulations will help empower students to hold their schools accountable."
After the rules are published in the Federal Register, there will be a 60-day comment period. Groups like the American Civil Liberties Union and the Human Rights Campaign have already spoken out against it. Those groups, in addition to FIRE, Families Advocating for Campus Equality (a group co-founded by the mother of a student accused of sexual assault), Know Your IX, and many others, will be able to submit feedback on the rules before they're implemented.