Education Department's draft rules to allow cross-examination of accusers in sexual assault cases: report

Education Department's draft rules to allow cross-examination of accusers in sexual assault cases: report
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The Department of Education is looking to impose new federal guidelines that would require schools to allow the cross-examination of accusers in sexual assault cases, The Wall Street Journal reported, citing people familiar with a draft of the rules.

The new rules would be a shift from the initial draft leaked in August, which had given schools the option of using cross-examination in their procedures, but did not require it, according to the Journal.

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The draft of the new rules would mandate that accused students be allowed to cross-examine their accusers, but allows for the questions to be asked by a neutral party and for the students to be in separate rooms during the questioning.

The guidelines would also protect accusers from being asked inappropriate questions, such as ones relating to an accuser's sexual history.

The Department of Education did not immediately reply with official comment to a request from The Hill. 

After publication, a department spokesperson told The Hill, "The Department is in the process of developing an NPRM to clarify schools’ obligations under Title IX in redressing sex discrimination, including complaints of sexual harassment, and the procedures by which they must do so."

"The Department is in the midst of a deliberative process prior to publishing the NPRM, and has not yet finalized a proposed rule," the spokesperson added. "The Department will not comment on any news reports about purported drafts of internal privileged and deliberative documents."

Some cheered the reported rule changes as an important step toward ensuring fairness in campus adjudication processes.

"Courts have recognized that cross-examination is an essential part of the process of figuring out the truth in cases where credibility is a factor," the legislative and policy director for the Foundation for Individual Rights in Education (FIRE), Joe Cohn, told The Wall Street Journal.

FIRE has long criticized the Obama-era rules, which the organization says severely undercut due process for those accused of sexual assault on college campuses.

Some have lamented the reported changes, saying they may deter victims from coming forward.

"If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” a former Obama Justice Department Official who oversaw civil rights enforcement in education settings, Anurima Bhargava, told the Journal.

Others have cheered the reported rule changes as an important step toward ensuring fairness in campus adjudication processes.

 "Courts, including the Supreme Court, have recognized for a long time that when facts are in dispute and in particular when credibility is an issue in a case, there’s no greater engine towards discovering the truth than cross examination,"  the legislative and policy director for the Foundation for Individual Rights in Education (FIRE), Joe Cohn, told The Hill.

FIRE has long criticized the Obama-era rules, which the organization says severely undercut due process for those accused of sexual assault on college campuses.

Cohn noted that credibility and disputed facts are not always issues, but said cross-examination "is essentially fundamental to fairness" in cases where they are.