Cross-examination is essential, even in Title IX investigations
In condemning regulations that would grant the right of cross-examination (through advocates) to both sides in Title IX tribunals, the Dec. 15 editorial “Don’t retraumatize sexual assault victims” should have directed its criticism not at Education Secretary Betsy DeVos but instead at the due process clause. After all, it’s that section of the Constitution that has guided federal court decisions on this issue. “Due process,” the U.S. Court of Appeals for the 6th Circuit noted in a sexual assault case from the University of Michigan, “requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth.” As another federal judge noted, in a case from Penn State , due process also serves the university’s interest — which must be not for unfair procedures that eject “innocent students who would otherwise benefit from, and contribute to, its academic environment,” but in “securing accurate resolutions of student complaints.”
It was surprising to see the editorial imply that these and similar decisions are wrong. But, at the least, the editorial should have acknowledged that, on cross-examination and Title IX, Ms. DeVos was merely following the trend of judicial opinions.
KC Johnson, Scarborough, Maine
The writer is co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”
The editorial “Don’t retraumatize sexual assault victims” argued against allowing the representatives of a student to cross-examine an accuser. The headline presupposed the guilt of the accused and trauma of the victim, and, in doing so, underscored precisely why cross-examination is essential to procedural due process. That is particularly so in situations in which the accounts of the accuser and the accused are often the only evidence. I regret that cross-examination may be an ordeal for a victim, but one who seeks justice must accept the responsibilities required by a fair hearing process.
Eugene D. Gulland, Aldie
When reviewing the cases that have hammered college kangaroo courts for following the Obama-era guidance, what stands out is the failure of colleges to be serious about truth-finding. The proposed regulations recognize that accusation is not proof. Truth-finding is the purpose of an investigation. We have known for hundreds of years that cross-examination is the most powerful mechanism for truth-finding.
The right to challenge the story of an accuser is so fundamental that it is enshrined in the Sixth Amendment of the Constitution for criminal accusations. Truth-finding is no more uncomfortable for the accuser than it is for the accused. The fig leaf of saying that the penalties imposed by colleges are not “criminal” sanctions does not change the severity of the matter. The possibility of being branded a sexual assault perpetrator has lifetime consequences that deserve real truth-finding.
Margaret C. Valois, Lynchburg, Va.
The writer is a Title IX adviser to accused students.