Court Allows Cross-Examination in Campus Sexual Assault Cases
The court’s ruling to allow cross-examination during sexual-misconduct cases is binding in all public higher-ed schools in Michigan, Ohio, Tennessee and Kentucky.
The U.S. Sixth Circuit of Appeals has ruled that “a public university…must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder,” according to AP.
The court came to this ruling in regards to a sexual assault case at the University of Michigan.
A male student, referred to as John Doe in the report, was accused of having sex with a female student, Jane Roe, without her consent after a party. Both students were seen drinking alcohol and kissing each other on the dance floor.
What happened after the party is a lot of “he said/she said,” said Judge Amul Thapar, who wrote the report for a three-judge panel at the U.S Sixth Circuit Court of Appeals.
Doe claimed it was consensual while Roe says she was too intoxicated to give consent. As for the witnesses, it appeared that all the male students defended the accused while the female students defended the accuser.
The university investigator recommended the case be closed and ruled in Doe’s favor. However, Roe appealed and asked for reconsideration.
The university’s Appeals Board then reviewed the report and found Roe’s description of the night more credible and witnesses more persuasive than Doe’s. Doe agreed to leave the university in 2016 instead of face expulsion.
Doe, only 13.5 credits away from graduating, sued the university under the Due Process Cause and Title IX, according to the case file.
He argued that since the decision was based on victim and witness credibility, the school was required to give him a hearing to cross-examine Roe and the witnesses. He also claimed the school violated Title IX because the school’s decision to discredit his story and witnesses was due to his gender.
The judge says in the report, “Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth. 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.”
In regards to these claims, the Sixth Circuit made two things clear:
- If a student is accused of misconduct, the university must hold some sort of hearing before
imposing a sanction as serious as expulsion or suspension.
- When the university’s determination turns on the credibility of the accuser, the accused or
witnesses, that hearing must include an opportunity for cross-examination.
The University of Michigan is considering the implications of this ruling and how it might change the way they have handled suspension and expulsion for nearly 60 years, reports Safe Campuses.
This ruling applies to only four states so far, but has the potential to spread throughout the United States.
One judge in the Doe case, Ronald Lee Gilman, said, “the majority has traveled ‘a bridge too far’ in mandating that ‘if the university does not want the accused to cross examine the accuser under any scenario, then it must allow a representative to do so.’”
The Court does not fully address the negative repercussions that may occur from an alleged rapist interrogating their accuser, according to Safe Campuses.
However, it did state that if an institution “is worried about the accused confronting the accuser, it could consider other procedures such as a witness screen.”
In 2011, under the Obama administration, the U.S. Department of Education and its Office for Civil Rights (OCR) strongly discouraged allowing the involved parties to question or cross-examine each other during a hearing. The 2011 Dear Colleague letter, which you can read here, was recently rescinded by the Trump administration.
“Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment,” wrote Russlynn Ali, Assistant Secretary for Civil Rights.
However, last month under the Trump administration, the New York Times revealed that the new rules by the Department of Education would allow a complainant and the accused to request evidence from each other and cross-examine each other. Those rules are set for release sometime this month.
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