Some students and officials believe that live hearings are detrimental to victims and could affect their willingness to report sexual misconduct. Photo courtesy of StockSnap from pixabay.
Following a controversial ruling in the California court of appeals earlier this year, Chapman officials announced that sexual misconduct cases will now include live hearings —a setting which allows the alleged perpetrator to question his or her accuser.
“One of the criticisms of the ruling is that it may be chilling for the complainants. It’s something that I have a lot of concerns about,” said Chapman’s Lead Title IX Coordinator Deann Yocum-Gaffney. “It’s one of the cons of the new decision.”
Chapman University had 91 cases of Title IX complaints and allegations in the 2016-2017 academic year, and 82 were filed in the 2017-2018 academic year. Statistics from the 2018-2019 year will not be available until July, but the Dean of Students Office is expecting 80-90 reports, according to Yocum-Gaffney.
Last school year the number of reported Title IX cases decreased from 91 to 82. Many people, including Yocum-Gaffney, are concerned that live hearings will steer victims away from reporting Title IX violations. Data chart courtesy of Yocum-Gaffney.
Live hearings are now required by state law, according to Director of Student Conduct Colleen Wood. Designated hearing officers and a university Title IX coordinator will facilitate the hearings between both parties, though the accusers aren’t required to be in the same room as their alleged assailant if they don’t want to face them in person. Regardless, some professionals say that the live hearings are insensitive and could scare victims away from reporting an assault.
Live hearings “will inhibit people from coming forward, and I don’t think that it will ensure any kind of just outcome,” film director and the producer of The Hunting Ground Amy Ziering told Prowl. The documentary, a compilation of testimonies from rape victims and interviews with experts, exposes rape culture on college campuses and “institutional cover-ups.” It has been screened at the White House and has been influential in state laws and college policies.
“Anyone who knows anything about this trauma would just categorically reject this as something reasonable or sane to even suggest. It’s just off the charts ridiculous,” Ziering said.
The live hearings were created to provide “fair trials” after a former USC football player sued the school’s Title IX investigators upon being expelled for sexual misconduct. The student, whose name is redacted in the court documents, claimed the school’s sexual misconduct policy “provides no mechanism for a party accused of sexual misconduct to question witnesses before a neutral fact finder.”
Title IX is a federal law that prohibits discrimination based on race, religion, sex, or national origin. Any college or university that receives federal funding must adhere to it, according to The National Collegiate Athletic Association. State laws also dictate how institutions of higher education must handle sexual assault complaints.
Federal funding would cease if the university rejected the live hearing and hearing officers, according to Wood. This includes student aid, grant money, loans, and Pell grants, so opting out is “not really an option for us,” Wood said.
The university could also lose state funding if it does not comply with the California Education Code, which require colleges that receive state funding to follow its misconduct policies. Affirmative consent, preponderance of evidence, and comprehensive prevention programs are some of the policies mentioned in the Education Code.
Until two years ago, the Dean of Students Office conducted joint hearings. This procedure stopped “because the hearing can be intense,” Yocum-Gaffney said. The new model involved two separate hearings, which at the time was legal because it was still up to the university’s discretion. Now, Chapman is reverting to the single hearing mode, according to Yocum-Gaffney.
The updated Sexual Misconduct Policy says that after the initial investigation and fact gathering, a live hearing will occur and a hearing officer separate from the investigator will be assigned to a case. Both the complainant and respondent will “attend” the same hearing, though the accused and the accuser may be in different rooms, attending via videoconference.
“Recognizing the risk that an accusing witness may suffer trauma if personally confronted by an alleged assailant at a hearing,” the California Court of Appeals states. “The court in CMC noted that an accuser could be present ‘either physically or through videoconference or like technology.’”
The “cross-examinations” planned for Chapman don’t allow the people involved to question the other directly, Wood said. All questions will be submitted to the hearing officers who will ask them during the hearing, the misconduct policy said.
Some students fear the new process will discourage sexual assault survivors from coming forward.
“When people use things like roofies, the victim can’t remember, so a cross-examination may not be effective,” Bass said. She also worried how victims might be judged in such a stressful situation: “They might choke up, and if they don’t sound completely confident, have every single fact in their mind, or get overwhelmed, they may seem unreliable.”
Wood said Chapman Title IX coordinators will still approach each case with care.
“We do our best to make this a trauma-informed process. It will never be trauma-free,” Wood said. “Ensuring that they have an understanding of what that entails and what all of the steps are going to be is a really important part.”
Seven to eight faculty members will serve as hearing officers, Yocum-Gaffney said. Hearing officers and investigators are trained by national organizations that specialize in sexual misconduct, according to Wood.
Most notably are Atixa, an association for Title IX Coordinators, U.S. Center for SafeSport who deals with sexual misconduct in U.S. sports, T9 Mastered, and the law firm Hirschfeld Baker.
Even advocates for the accused have concerns about the new procedures.
“I don’t believe anyone should participate in those hearings,” said Los Angeles criminal defense attorney R.J. Manuelian, who defends people accused of sexual assault. “From a criminal standpoint, I don’t think it’s a wise idea for anyone to speak about accusations that they are charged with without an attorney.”
“Live hearings benefit the accuser because it gives them the right to confront the accused,” Manuelian said. “It’s a benefit for the accuser and a detriment to the accused because they technically shouldn’t be answering these questions without a lawyer present.”
Some students agree with Manuelian that the live hearings would do the opposite of its intention.
Others argue that live hearings are an opportunity to protect the innocent.
“You can see more authenticity with what one person says and how the other reacts. It’s more genuine and accurate. I support the live hearing because it could benefit the victim as well as the accused in the rare cases where they are innocent,” said sophomore kinesiology major Brandon Raymundo.
California’s new law is somewhat in alignment with proposals from United States Secretary of Education Betsy DeVos, which aim to eliminate the preponderance of evidence standard and replace it with the standard used in criminal cases, which requires evidence to present a case which is “beyond reasonable doubt.” This would make it harder to prove that the accused violated the sexual misconduct policy, because often times sexual assault cases lack evidence and witnesses.
Chapman Republicans and the California Republican Party did not respond to requests for comment.
The Dean of Students Office released an anonymous Sexual Misconduct Climate Survey to all Chapman students on April 15. It has been done for the last three years, and students are asked questions about sexual violence experiences and their awareness of sexual misconduct policies.
“This information is critical to tailoring sexual violence prevention education programming and to improve the campus response,” the survey said.
Because of the sensitive topic, descriptions and trigger warnings were given before each section of the survey.
The survey will serve to “understand the scope and nature of sexual violence at Chapman University,” according to the survey.
In 2017, 83 percent of the survey respondents said they were confident that Chapman would administer sexual misconduct procedures fairly, according to the survey data. In 2018 it decreased to 79 percent.