US Court of Appeals rules University must allow cross-examination in sexual assault cases

Friday, September 7, 2018 - 12:40pm

The Sixth Circuit Court of Appeals struck down the University of Michigan’s sexual assault investigation model Friday

The Sixth Circuit Court of Appeals struck down the University of Michigan’s sexual assault investigation model Friday Buy this photo
Alexis Rankin/Daily

The Sixth Circuit Court of Appeals struck down the University of Michigan’s sexual assault investigation model Friday, saying that universities “must give the accused student or his agent an opportunity to cross-examine the accuser.” The current U-M sexual misconduct policy does not require a hearing or cross-examination of the student making the accusation.

This decision is an appeal of U.S. District Judge David Lawson's ruling in the 2017 court case Doe vs. Baum. In this case, Lawson dismissed a lawsuit filed by Deborah Gordan Law on behalf of a former University student who violated the University's Student Sexual Misconduct Policy yet argued his due process was denied.

According to the court opinion, the University of Michigan, as a public university, failed to comply with the holding that accused students must have the opportunity to cross-examine their accuser when credibility is in question.

"Thirteen years ago, this court suggested that cross-examination may be required in school disciplinary proceedings where the case hinged on a question of credibility. Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 641 (6th Cir. 2005)," the opinion read. "Just last year, we encountered the credibility contest that we contemplated in Flaim and confirmed that when credibility is at issue, the Due Process Clause mandates that a university provide accused students a hearing with the opportunity to conduct cross-examination. Doe v. Univ. of Cincinnati, 872 F.3d 393, 401–02 (6th Cir. 2017). Today, we reiterate that holding once again: if a public university has to choose between competing narratives to resolve a case, the 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. Because the University of Michigan failed to comply with this rule, we reverse."

The incident in question occurred at a fraternity house in January 2016 when the female was a freshman at the University. According to the version of events presented in the case of the former male student, identified as John Doe in the claim, the woman was served a shot of alcohol in his room upstairs after they met earlier. After the shot, the pair went back downstairs, danced and eventually started kissing before they went back his room. The two then allegedly had non-consensual sex.

Later in the evening, the female went to the hospital where a rape kit was administered by medical personnel. No criminal charges were made against the male at the time, though it was investigated by the University's Office for Institutional Equity. The OIE initially concluded the male in question did not violate the sexual misconduct policy in April 2016, but the decision was overturned by an appeals board in May 2016.

Following the decision, the student withdrew from the University. 

According to court records, Lawson upheld the appeals board's decision because it did not violate the plaintiff's underlying due process. The lawsuit claims the University's sexual misconduct policy discriminates against men accused of sexual assault by not providing them the ability to cross-examine their accuser.

The sexual misconduct policy was updated July 2016, adding changes to definitions of consent, sanctions and the appeals process. An appointed appeals board consisting of a faculty member, staff member and student was replaced with an expert external reviewer with legal knowledge.

Though the policy change was not in effect at the time of the case, Deborah Gordon, his lawyer, said her client would not have faced expulsion under the updated appeals process and definition of incapacitation in the new sexual misconduct policy.

“My client did have a fair hearing in front of the OIE investigator,” she said. “That was all swept away by this appeals panel. I’m really surprised by the lack of due process rights provided to students whose lives are going to be completely changed forever.” 

In 2017, the U.S. Sixth Circuit Court of Appeals ruled in Doe vs. University of Cincinnati that an accused student must receive some form of cross-examination in sexual assault cases based on word of mouth.  

“The Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process,” the ruling read. “Here, the University’s disciplinary committee necessarily made a credibility determination in finding John Doe responsible for sexually assaulting Jane Roe given the exclusively ‘he said/she said’ nature of the case. Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

According to the Detroit Free Press, the court made a similar judgement in Friday’s ruling, writing that the University’s current system automatically discredits males in court hearings based on gender bias.

"When viewing this evidence in the light most favorable to Doe, as we must, one plausible explanation is that the (University of Michigan) discredited all males, including Doe, and credited all females, including Roe, because of gender bias,” the court wrote.

A previous version of this article said this ruling was the result of a June lawsuit. This has since been corrected.

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