Amid Education Secretary Betsy DeVos‘ interim guidelines on Title IX college sexual assault investigations, one U.S. appeals court has handed down a ruling that falls in line with DeVos’ push for protecting the accused.
On Monday, a federal appeals court upheld the blocked college suspension of a University of Cincinnati student accused of sexual assault. The student says he was denied his right to confront the woman accusing him, and that his rights to due process were violated.
According to the Associated Press and WCPO Cincinnati, the 6th U.S. Circuit Court of Appeals ruled 3-0 in agreement with a federal judge’s injunction from last year. The student, under the moniker of John Doe, had sex with a female student he had met through a dating app in 2015. She reported the encounter wasn’t consensual, while he said it was.
Doe faced a one-year suspension as a result of his university disciplinary hearing, but the student who accused him, “Jane Roe,” did not make an appearance at the hearing, leaving Doe unable to confront her to counter details of her accusations. The court said the “he said/she said” nature of the case required university officials to provide fairness to the student.
“Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair,” the ruling said.
The courts’ ruling also appeals to DeVos’ push for “clear and convincing evidence” regarding campus sexual assault investigations, a regulatory overhaul from the standard “preponderance of the evidence” universities needed to take disciplinary action, as advocated by the Obama administration. DeVos’ new guidelines went into effect on Friday, and will serve in the interim as the Education Department gathers public comment for a new guidance.
One of the more abrasive guidelines for sexual assault survivors concerns the equity given to both the accusers and the accused in the adjudication procedure, which allows the accused to cross-examine the accuser. Previously, the Obama administration discouraged this cross-examination of accusers by the accused in order to protect the survivor from possible trauma or intimidation.
That means that a survivor could be directly questioned by her assailant. Not through an intermediary or representative. Directly.— Alexandra Brodsky (@azbrodsky) September 22, 2017
That's why the old guidance suggested schools could have students submit questions through intermediary board. That's what HLS now does.— Alexandra Brodsky (@azbrodsky) September 22, 2017
Schools: guidance doesn't require direct cross. You can still do right by your students. Lead the way.— Alexandra Brodsky (@azbrodsky) September 22, 2017
This change has been criticized by sexual assault survivors and advocates who say that survivors knowing they no longer have this protection could be less likely to come forward and report their assault. While statistically one in five college women are assaulted during their time in school, 89 percent of colleges campuses said they had zero reported incidences of rape in 2015, showing that sexual assault reporting is already low.
University of Cincinnati student Kenna Corey told WCPO that she was disappointed in the court’s decision as a survivor. Corey was assaulted in high school and realized after transferring to the university that her attacker also attends the same school.
“Being a survivor is a difficult enough experience, but we live in this culture that constantly refuses to believe survivors of sexual assault and affirm their experiences,” Corey said. “(Universities) need to say that they will step up and that they will believe us and support us and that they will do whatever they can to listen to us, hear our experiences, and create change.”