University revises student sexual misconduct policy to include in-person hearing

Wednesday, October 24, 2018 - 8:47pm

The University of Michigan released a statement Wednesday announcing the University will amend its policy on student sexual misconduct to incorporate an in-person hearing where the students involved in the sexual misconduct investigation can ask questions to each other and witnesses. The amendment comes after the recent U.S. Sixth Circuit Court of Appeals ruling, which states public universities “must give the accused student or his agent an opportunity to cross-examine the accuser.”

Following this ruling, the University petitioned for a rehearing from the Sixth Circuit panel that edited the decision to clarify no student has the right to a direct cross-examination. This request for a rehearing was denied. If the University decides not to appeal the ruling to the Supreme Court, the ruling will apply to all colleges and universities in the Sixth Circuit including Michigan, Ohio, Kentucky and Tennessee, thus requiring them to reconfigure their procedures for sexual assault hearings and investigations

In the University’s amended policy, the in-person hearing will be facilitated by a trained officer. The details of the policy expected to be released later this fall are still being ironed out. As of now, officials offer students involved in sexual misconduct cases, as opposed to their advisers, will likely be required to ask questions at their hearing.

In the Public Affairs press release detailing this policy revision, Jeffery Frumkin, the new interim Title IX coordinator and senior director at the Office for Institutional Equity, said OIE will try to maintain as sensitive and informed of a process as possible while still being in accordance with the ruling.

“We believe that an appropriate and lawful hearing model is one in which cross-examination is allowed, but in a less intrusive, more trauma-informed manner that allows parties to submit written questions through a neutral hearing officer to ask of the other party and witnesses,” Frumkin said. “However, we will move forward with the process that best meets the needs of our community as well as adheres to the new requirement.”

The changes to this policy will be considered temporary for a period of time while the University determines how the community assesses the effectiveness of the policy. The policy was last revised in Februrary to broaden definitions of gender-based harassment and intimate partner violence. 

In appealing the Sixth Circuit’ original ruling, the University filed a brief argued a cross-examination process could create a hostile environment for both parties.  

“Requiring universities to allow cross-examination by counsel will convert disciplinary proceedings into full-scale adversarial hearings, with the university forced to preside,” the University’s brief read. “Moreover, the panel opinion introduces new opportunities for unfairness, with economically advantaged parties likely represented by counsel, and others essentially appearing pro se or with only non-lawyer family members or support persons.” 

By the end of September, however, another brief filed indicated adminstrators would move forward with the live hearing model. 

“(The University) is no longer contesting whether the investigative model they have used to date is sufficient, and understand that they must provide students in Title IX cases with a live hearing including cross-examination,” the filing reads. 

Public Policy senior Lena Dreves told The Daily last month she feels the Sixth Circuit's decision poses significant issues, especially if students are allowed to bring in a professional advocate.

“(T)he University must take the lead when it comes to defending the most financially vulnerable students on campus, especially those who may not be able to hire a lawyer,” Dreves wrote in an email. “It is incorrect to assume that due-process cannot be accomplished by a third party cross examination. These are not full-on judicial proceedings, nor should they be. To allow the accuser the option of hiring a lawyer and directly confronting the accused would not only add complexities for survivors coming forward, but it would give advantages to the ‘financially better off’ student.”

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