This week, the Trump Administration proposed regulations substantially revising an Obama administration policy that largely put the burden of proof on the accused in campus adjudications of sexual-misconduct allegations – a significant departure from the principle of “innocent until proven guilty.”
The proposals will now be published in the Federal Register and subject to public comment and, if adopted, will have the force of law. The Obama rules were typically in the form of a “guidance,” which was issued unilaterally and had to be followed by colleges and universities on pain of losing certain federal funding.
This is a very big deal. The recent Senate confirmation hearings on the nomination of Supreme Court Justice Brett Kavanaugh underscored, in real time, the dilemma facing fact-finders in what are loosely referred to as “he said, she said” disputes. Dr. Christine Blasey Ford’s low-key, often emotional testimony, seemed compelling, but so did Justice Kavanaugh’s animated and emphatic denials.
Yet a decision had to be made, and, as it turned out, the outcome reflected the traditional legal standard that the burden of proof rests with the accuser.
In retrospect, we cannot understand how some members of the Senate Judiciary Committee urged voting against Kavanaugh. Except in rare circumstances of, say, available exculpating alibi evidence – certainly not present in the Ford-Kavanaugh matter – how can an accused prove a negative?
Of course, we are not unmindful that the committee vote in favor of Kavanaugh was largely along party lines, and Democrats are obsessive about keeping Trump nominees off the Supreme Court. But jettisoning the principle of requiring accusers to prove – not merely assert – their case seems, well, un-American.
To be sure, Committee Democrats fulminated about how the investigation into Justice Kavanaugh’s background was incomplete. However, this had all of the earmarks of a concocted excuse, especially in light of the fact that the senior Democrat on the Committee, Senator Diane Feinstein, withheld information about Dr. Ford’s allegations from the Committee until well after the usual period of inquiry had ended.
At all events, the new Trump Education sex abuse rules properly bolster the due process rights of the accused. Perhaps the most significant one concerns the all-important right of an accused to cross-examine his accuser. The Obama guidance had strongly discouraged schools from allowing cross-examination of an accuser because, an Obama official told the Wall Street Journal, “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience.”
That’s a rather questionable, one-sided approach to a difficult problem. Indeed, federal and state courts have come down hard on this approach. Typical is this part of a ruling by a federal appeals court in Michigan: “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”
The new regulations seek to accommodate this concern by limiting the conduct of cross-examinations of witnesses to lawyers or other advocates for the accused.
The proposed Trump regulations would also require that both the accused and accuser have access to all evidence gathered in the investigation, an important change from the Obama guidance. The new rules would also end the practice of the “single investigator” model which allowed schools to have a single person be investigator, judge, and jury.
The new rules will certainly make the procedures more equitable although it can’t be denied that they are not as favorable to accusers as the Obama guidance. Yet, the latter seemed more designed to implement a social policy of condemning sexual abuse on campus rather than providing a mechanism for fairly determining that it occurred.