The Chance to Question Your Accuser

In July, a federal judge instructed the University of Michigan to break from its policies for investigating sexual assault and instead to hold a live hearing so that a student accused of rape could question his accuser.

The decision could have national implications as it is part of an emerging pattern of case law: establishing that those accused of campus sexual violence have the right to question the evidence against them.

With the U.S. Department of Education on the cusp of releasing new draft regulations on the federal gender discrimination law, Title IX of the Education Amendments of 1972, campus leaders are waiting to see how prescriptive Education Secretary Betsy DeVos will be with a few of these processes.

The anonymous male student sued Michigan in June, alleging that its sexual assault policies deprived him of due process rights. The student was accused of rape in April stemming from a sexual encounter last November that he said was consensual. Officials hadn't determined yet whether he committed the assault.

Last month, U.S. District Judge Arthur Tarnow ordered the institution to arrange the live hearing, writing in his ruling: "[The university] essentially asks the court to sit back and wait for the investigator to issue findings against plaintiff before intervening in this action. But at this very moment, the university may be denying plaintiff due process protections to which he is entitled. The court cannot, and will not, simply stand by as the fruit continues to rot on the tree. This case is ripe for adjudication."

This ruling doesn't mean that the accused student would be directly asking his accuser questions, merely that he be given the opportunity to challenge her narrative.

Last year, the U.S. Court of Appeals for the Sixth Circuit, which encompasses Michigan, ruled similarly. In that case, the appeals court blocked the suspension of a male University of Cincinnati student because he had not been given the opportunity to question a female student accusing him of sexual assault.

For crusaders of due process, those who claim that institutions have trampled or ignored the constitutional rights of (primarily) men accused of sexual assaults, the Michigan ruling was a win.

"Everyone -- guilty or innocent -- must have access to the courtroom rights that are due to them," wrote Daniel Payne, an assistant editor for the conservative publication College Fix. "It is refreshing and hopeful to see a federal judge who understands this."

But guidance that the Obama administration gave to colleges on campus sexual assault and Title IX -- under which most campuses still operate -- did in fact envision a "hearing" in which both sides could question the other. It is a model supported almost universally by both due process and survivor advocates. Often the Obama rules, which came in the form of a "Dear Colleague Letter" in 2011, have been criticized by due process activists for being unfairly slanted against the accused. DeVos rolled back these guidelines last year and released an interim version that gives colleges and universities far more flexibility in Title IX cases.

But the 2011 letter is clear on this issue: nowhere does it mention barring questioning altogether. It states that the Education Department strongly discourages direct questioning by either party during a hearing, as allowing an alleged perpetrator to cross-examine a victim could be "traumatic or intimidating."

Neither Title IX nor other federal law, such as the Clery Act (the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act), requires a live hearing. And so institutions have taken "shortcuts to justice," said S. Daniel Carter, president of Safety Advisors for Educational Campuses, which consults with colleges and universities on Title IX.

A common practice is relying on a single official, who may work at the university or who may be hired from outside, who interviews both the accused and accuser and decides if a sexual assault occurred. With this model, though, sometimes neither person can question the other. The University of Michigan uses this "single-investigator" model for adjudicating Title IX cases, and a live hearing for other violations of the student conduct code, such as non-sexual harassment or hazing.

Carter said it can be challenging for universities to set up a system in which both parties ask questions, but it’s possible -- they can use a third party, such as a "hearing officer" who would pose questions back and forth, or set up a video circuit where the victim is removed from the room of his or her alleged rapist.

Sometimes, though, college administrators will simply skip the questioning because it can become emotional -- or because they simply want to control the process, Carter said.

Sexual assault survivors who pursue the university process want to be heard and given the opportunity to challenge their alleged rapist, said Laura Dunn, a lawyer who founded SurvJustice a survivor advocacy group who’s now with The Fierberg National Law Group in Washington, D.C. That’s why she always seeks out a live hearing for her clients.

Some institutions don’t care about campus safety, Dunn said. They only want to protect themselves by governing as much of the adjudication as possible -- they don’t want to be transparent.

"Survivors are very reluctant to access the campus process -- in fact that’s the norm," she said. "Most survivors don’t seek justice and so they when they do access the process they want their rights fully recognized, which creates a fair and balanced process -- and you can rely on the outcome."

Institutions lose more control with live hearings because often the outcome of the cases is determined by a panel of students or staffers and not an investigator that they pick, said David A. Russcol, a lawyer specializing in Title IX with Zalkind Duncan & Bernstein in Boston.

Sometimes the panelists aren't trained in Title IX, which makes ensuring a fair process much more difficult, Russcol said. They also may have more of an instinct to protect the institution and do what’s best for it, rather than for the parties, he said.

Whether the Education Department will force such live hearings in its forthcoming Title IX regulations remains unknown, said Peter Lake, a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University. More cases involving cross-examination -- a hot topic, he said -- will likely be decided in the Sixth Circuit, which blocked the suspension of the accused Cincinnati student who hadn't been able to question his accuser.

"Everyone is playing scratch-and-sniff on just how detailed and particular the regulations will be and how much choice there will be," Lake said.