The Biden administration recently finalized a proposal to update the Title IX laws in place at schools.
The Biden administration recently finalized a proposal to update the Title IX laws in place at schools. Title IX is a civil rights law that “bans sex discrimination in schools that receive federal funding and outlines how schools must adjudicate sex discrimination and abuse complaints.”
However, Biden’s new rules call into question the ethics of protocol and live cross-examinations of survivors who report sexual assault and abuse. The administration seeks to utilize trauma-informed questioning models, but has not yet commented on the legal repercussions many survivors face when they testify.
In 2021, United Nations Special Rapporteur for Freedom of Opinion and Expression Irene Khan stated that women who come forward with their experiences of sexual violence “are increasingly subject to defamation suits or charged with criminal libel or the false reporting of crimes.”
Controversy surrounding the typical cross-examination method continues: The US legal system has historically assumed that it is the “most effective tool for revealing false accusations.”
However, scientific studies show that survivors of sexual abuse and other traumatic events experience intense emotions and hyperarousal when they are face-to-face with their abuser. Unfortunately, these recurring trauma symptoms often diminish a survivor’s perceived credibility.
Under section 106.46(g) of the revised rules, “each party is allowed the option to appear in separate rooms, using technology like speakerphones and listening devices.” The regulations also prohibit cross-examination questions “that are unclear or harassing of the party being questioned” (§ 106.46(f)(3)).
As a result, the new policy differs from Trump’s proposed 2020 Title IX regulations in that schools are no longer required to “permit a live hearing with in-person cross-examination for all sexual harassment complaints.”
Still, this revised structure does not take into account the threat of defamation faced by many Title IX complainants who provide investigators with evidence.
Although the initial impact of the Biden administration’s newest regulations will grant necessary support to survivors, the possibility of long-term damage casts a dark shadow on the process of Title IX reporting. Without the promise of protection in the wake of their testimony, threats of retaliatory defamation are still in the forefront of survivors’ minds.
The United States legal system has not acknowledged the ways in which in-person cross-examination may be optimal when establishing a factual record of sexual abuse cases. As a result, many argue that Biden’s regulations must include additional laws to prevent future lawsuits if the administration’s goal is to remain trauma-informed.
Authors: Andy Goldwasser and Alexis Kabat
