Friday, July 3, 2020
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Accused can question accusers in sex assault cases

In a Michigan case, the US Court of Appeals for the Sixth Circuit has ruled that students who are accused of sexual assault have a due process and Title IX right to cross-examine the accuser and adverse witnesses whenever credibility may be a factor in the case, according to the opinion filed in the case.

[I]f 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.

At a frat party, themed for “Risky Business,” a junior fraternity member at the University of Michigan, Ann Arbor, danced, kissed, and had sex with a freshman girl who was also attending the party. She claims he assaulted her because she was, in his bedroom, too drunk to give consent. Since it’s against the code of conduct at the U of M to engage in sex with an incapacitated person, the university immediately launched an investigation in her claim.

He said the sex was consensual, at every stage, while she said she can’t remember giving consent but that she was definitely in a haze. The university interviewed 23 other students as “witnesses” to the act. Most of the male witnesses corroborated the boy’s claims, while most of the female witnesses corroborated the girl’s.

The university’s disciplinary board then found the boy guilty and threatened to expel him; he was given the opportunity to withdraw on his own accord and decided to take that course of action. But he sued the university after the decision, claiming the university had denied him certain rights during the disciplinary hearing.

As with so many cases in which university personnel conduct a criminal investigation, it was botched, the Sixth Circuit concluded. A district court’s decision to dismiss certain claims from the boy were thus reversed by the appellate court; the case was remanded for further action.

The boy charged the university’s board with ignoring testimony from male witnesses because “many of them were fraternity brothers.” On the other hand, the board failed to mention that the female witnesses were sorority sisters of the girl. The boy claimed that this showed a gender bias, which would violate Title IX.

When a court considers a claim of gender bias like this, judges are required to view the claim in the “light most favorable to” the person making the claim. That is, if it’s possible the board showed bias by treating male witnesses differently from female witnesses—and it would help the case of the party claiming gender bias—the court has to find for the person making the claim.

Note that this is not a decision to say the claim is correct—just that the person making the plausible claim should be given the opportunity to prove that claim with evidence, unless the person would lose the case regardless of whether the claim is true.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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