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November 19, 2018

Your Client Is Involved in a Campus Sexual Assault Case. Now What? New Rules Could Be in Play

Secretary of Education Betsy DeVos unveiled tentative changes to Title IX, which affect sexual assaults and misconduct on school grounds and campuses. The proposed changes will not be made permanent until public hearings can be held.


Proposed changes to Title IX guidelines by Secretary of Education Betsy DeVos have relaxed certain standards and rules regarding the reporting of sexual assaults in schools and on campuses and those changes have advocates and opponents speaking out.


The proposal also includes several provisions, such as having both the complainant and respondent cross-examined by a third party, that some say will make it more likely that survivors won’t come forward to report abuse. It was released Friday, opening a 60-day period for public comment on the proposal that would affect how schools handle allegations of sexual assault.


The proposed changes, which are for nearly all colleges and universities as well as K-12 public schools and some private schools, include the reversal of many Obama administration rules. The proposed changes will come from the Office for Civil Rights of the U.S. Department of Education.


One proposal that proponents and opponents say will have a monumental effect moving forward on cases of alleged sexual misconduct and assault deals with the cross-examination of both the accused and accuser by an attorney or other third party. Students will not be allowed to cross-examine each other. That new proposed rule will mean many sex assault victims will not come forward, according to Beth Hamilton, associate director of the East Hartford-based Connecticut Alliance to End Sexual Violence.


“Essentially, the questions can harm and further traumatize survivors,” Hamilton said Monday. “It will absolutely have a great negative effect on survivors coming forward.”


“Betsy DeVos has met with some controversial men’s groups and has said these steps will negate false reporting,” Hamilton said. “But research shows that only 2 to 5 percent of [complaints] are false reports. That is the same percentage as with other crimes.”


Defense lawyers representing the accused say the new proposal, specifically related to cross-examination, was needed.


“The changes to due process were welcome and necessary,” said Michael Allen of New Haven-based Allen Law LLC. Allen, who specializes in Title IX cases and handles upward of 30 a year on behalf of, primarily, accused clients, told the Connecticut Law Tribune on Monday “that there are some people who do not like the cross-examination because they say it will traumatize victims. But that is something our civil justice system tolerates. I don’t think anyone wants to traumatize a real victim.”


While Allen said sexual assault on campuses “are a real problem going back to the 1950s,” he said there have been cases of people being falsely accused and that those individuals also must have strong rights in place. “Someone falsely accused has their education interfered with. That is a very serious right that is being interfered with and has permanent ramifications for lifelong learning capacity.”


Patricia Hamill, a Philadelphia attorney who typically represents the accused, said: “In terms of testing the credibility or plausibility of a narrative, having cross-examination is a time-tested method that’s been embodied in our laws to drive toward the truth of a situation.”


Hamill, a partner at Conrad O’Brien, added, “I think it’s a welcome element to these processes.”


Kimberly Lau, a partner at New York City-based Warshaw Burstein, has represented both sides in Title IX cases, including faculty. “My focus is on making sure the process on campuses is fairer to ensure the integrity of its outcomes. We shouldn’t have to sacrifice due-process protections in order to get to the right outcome.”


The proposed changes also specify to whom sexual assault victims should report attacks. Under the new guidelines, victims can only report to an “employee with authority to institute corrective measures.” Hamilton said the new rules will mean that survivors can no longer report to “someone they know and trust, like a coach, teacher or resident adviser.”


The definition of sexual misconduct or abuse could also be changed. If the measures are finalized, the new language would narrow the definition of sexual abuse. It would be defined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”


Raychel Lean contributed to this report.


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