Education Secretary Betsy DeVos announced changes to the rules governing student sexual assault cases earlier this month. The multitude of new regulations may introduce cross-examination into investigations conducted by colleges and universities.
“I definitely think they’re a step in the right direction,” Bloomington attorney Amelia Lahn said.
The amendments proposed by the U.S. Department of Education will serve as federal guidelines for the way all colleges and universities handle cases of sexual assault on their campuses.
Other changes under consideration with the proposal include a stricter definition of sexual assault, live hearings and a decrease in liability for universities.
Under the previous regulations, Lahn said questions between the accuser and accused were required to be submitted in writing to the hearing board first, as opposed to the parties being able to question each other directly.
Under the new proposal, both the accused and accuser in the case would be allowed to cross-examine each other directly through an adviser, such as a lawyer or victim advocate.
Lahn said this addition makes big strides in balancing out the rights of the victims and the accused in these cases.
“From the respondents' point of view, I just think this is invaluable because it gives them the chance to actually get to the truth and test out what somebody’s saying in a real way,” she said.
Before they are finalized, the new regulations face a 60-day public comment period. During this time, anyone may submit a comment online for the department’s consideration.
Emily Springston, director of the Office of Institutional Equity at IU, said the University will not make any changes to its policies or procedures until the rules have been finalized. It will instead spend the next month carefully reviewing the changes and participating in the comment period.
Springston said a group within the office has been charged with spending the next month examining the details of the proposal and deciding what to comment on.
Springston said it is still too early in the process to know exactly how IU will respond to these changes because they are still in the comment period.
“I’m hopeful that this isn’t the end and that we will see possibly the department listen to comments so we may have a final product,” she said.
Despite the uncertainty, Springston said IU remains confident in its current policies and will continue them until told otherwise. These policies include a formal investigation and hearing if requested by the student. Direct cross-examination is not allowed in IU’s current system.
“We’re just keeping our head down and standing by our policies and procedures,” Springston said. “And making sure we think that they are appropriate for everyone involved.”
Lahn said that many colleges and universities do not offer live hearings for these cases, but because IU already does, she said the potential change she is most excited about is the inclusion of cross examination.
“The Supreme Court, in one of its cases, said that, ‘cross-examination is the greatest legal engine ever invented for the discovery of the truth,’” Lahn said.
She said lawyers spend their careers practicing their ability to cross-examine a witness and develop strategies to help them uncover the truth.
“You might put emphasis on a word in a certain way or have a pause in a certain place or you might ask a certain question and wait to see what the answer is to make your next question,” Lahn said.
Despite her satisfaction with this proposal, Lahn maintains her belief that colleges and universities should not be handling these cases at all, and instead focus their efforts in providing the assistance to victims that the courts cannot.
“They can move someone to a different section of biology, they can move someone to a different dorm, they can give you a different adviser, they can give you more time to take a test,” Lahn said. “No one at the police station can do that. No one at the Monroe County Circuit Court can do that.”
