CA Supreme Court Rules in ERA-Supported Case Protecting Survivors & Witnesses of Gender-Based Violence

August 3. 2023

For Immediate Release
Aug 3, 2023

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Jess Eagle
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SAN FRANCISCO – The California Supreme Court ruled this week (July 31) that private higher education schools are not required to allow cross-examination of survivors of sexual and domestic violence in student misconduct hearings, distancing California from a Trump-Administration practice that singled out victims of gender-based violence.

Equal Rights Advocates and California Women’s Law Center, represented by Gibson Dunn, submitted an amicus letter in the case defending the civil rights of student survivors.

The case, Boermeester v. Carry, involved the expulsion of a University of Southern California student for intimate partner violence against a fellow student, one of the first domestic violence cases involving students to make it to the California Supreme Court. In Monday’s decision, the Court clarified fair procedure rights do not require a school to offer the opportunity for live cross-examination of student victims or witnesses.

The lower court’s decision, which the CA Supreme Court overturned, held that the University of Southern California’s disciplinary procedures, which did not always offer live cross-examination of victims, were unfair to petitioners (harmers) in school disciplinary proceedings involving sexual and domestic violence. But the lower court failed to recognize that the right to cross-examine is not extended to students in any other type of misconduct proceeding, such as plagiarism, theft, or destruction of property.

Singling out gender-based violence survivors for live cross-examination by their harmer or harmer’s representative, a practice endorsed by former Education Secretary Betsy DeVos, unfairly subjects survivors to practices more closely resembling criminal court hearings than student misconduct proceedings. ERA’s amicus letter explained to the court how cross-examination in the school setting is particularly harmful to survivors. It is often used as a tool by harmers to retaliate against their victims for reporting them, to retraumatize them, and to dissuade other students from reporting.

“The impact of this decision on student survivors cannot be overstated,” said Maha Ibrahim, Senior Attorney at Equal Rights Advocates, who leads the organization’s Ending Sexual Violence in Education Program. “Studies show that intimate partner violence, sexual assault, and other forms of gender-based abuse have lifelong impacts on survivors. Already, only 20% of college survivors report sexual violence, and a procedural system that allows perpetrators to aggressively cross-examine victims in public settings only further deters reporting.”

The decision that the CA Supreme Court overturned Monday was part of a troubling string of decisions by the Court of Appeal over the past several years, which have incrementally imposed additional onerous requirements on university disciplinary proceedings in cases of sexual misconduct and gender-based violence that are not required in any other school disciplinary proceedings. Advocates say these exceptions suggest that students who report sexual or domestic violence are less trustworthy than students who report other types of misconduct, or that those accused of gender-based violence deserve special protections against other students who report the harm.

The California Legislature also addressed the issue of live cross-examination in higher education institutions with a law that went into effect in January 2022 (SB 493, Hannah Beth Jackson), which was sponsored by Equal Rights Advocates. SB 493 disallows direct live cross-examination in California institutions of higher education, both public and private, and explicitly states that any case law conflicting with its provisions was superseded as of the statute’s effective date. Although the California Supreme Court found that it could not rely on SB 493 in this particular matter because its effective date fell after the facts and filings, the Court referred heavily to SB 493’s provisions and the legislature’s intent in support of its own reasoning in the decision.

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