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Judge: Accused students have right to cross-examination

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Part 1 of 5 in the series Due Process Wins
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DUE PROCESS WIN: A judge ruled that accused students deserve to cross-examine their accusers

An Ohio judge has ruled that a student accused of campus sexual assault potentially had his due-process rights violated when he was denied the ability to cross-examine his accuser.

John Doe, as he’s identified in court records, and his attorneys filed a preliminary injunction against the school in order to halt his suspension, which was set to begin Dec. 10. Judge Michael R. Barrett, of the U.S. District Court of the Southern District of Ohio, halted the suspension, claiming the University of Cincinnati student has a reasonable chance of prevailing in court on his claims of due-process violations.

According to the original complaint and the judge’s decision:

The case arose from an encounter between Doe and a female student identified as Jane Roe. Doe, a graduate student, met Jane on the dating app Tinder in 2015. After speaking online for a few weeks, the two agreed to meet. Doe said that on Sept. 6, 2015, Jane went to his apartment, where the two started to kiss and make out.

Doe said the encounter escalated quickly and the two removed their clothing. Doe retrieved a condom, to which Jane said “hold on.” The two talked for a while before engaging in sexual intercourse. After the encounter, Doe said the two continued to hang out in his room. Jane allegedly said she did not want the encounter to be a “one-night stand,” but Doe didn’t call her again and couldn’t contact her again through Tinder.

Nearly a month after the encounter – on Sept. 28, 2015 – Jane reported to UC’s Title IX office that Doe had sexually assaulted her. One month after that, on Oct. 30, 2015, Jane was interviewed by UC’s then-Title IX coordinator, Jyl Shaffer. Jane at that time claimed the encounter happened on Aug. 30. She said she agreed to meet Doe for dinner and then planned to study, but Doe asked her to study at his apartment. She agreed, and had a glass of wine while she worked at his place.

Jane said she and Doe talked and flirted and eventually began to kiss. She claimed Doe took her dress off and “kept progressing,” although she did not tell him to stop. She said the two engaged in sexual activity and eventually intercourse. Doe then walked her to her car.

Jane was interviewed by Shaffer a second time on Nov. 6, 2015. Jane in that interview claimed Doe had been forceful with her, and that there was no explicit conversation about engaging in sexual activity. She said Doe made her feel guilty, even though she never said “flat out, no. I don’t owe you sex.” She said she merely responded with phrases such as “I don’t know.” During this interview, she also acknowledged that at one point during the sexual activity, she was on top of Doe.

On Dec. 18, 2015 – nearly four months after the encounter – Jane also reported the incident to UC police. She now told police that she “set a line for herself for no sex” but that Doe became forceful while they were kissing. The UC police investigated and reported to the Cincinnati Police Department and the investigation was closed without any charges being filed.

It wasn’t until Feb. 19, 2016 – now nearly 6 month after the sexual encounter between the two – that UC’s then Title IX Program Coordinator Remy Barnett notified Doe by email of the accusation against him. The Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter in 2011 regarding Title IX – the anti-sex discrimination statute that now requires schools to adjudicate sexual assault – but only specified that accused students be notified of the outcome of an investigation. The letter did not require schools to promptly notify accused students of accusations (or even that the accused needed to be notified at all). Some schools, however, list in their Title IX procedures whether the accused should be notified.

UC is rare in that it includes a section on its Title IX website to assist accused students (many schools offer no such assistance to the accused, but numerous resources for accusers). The school’s Title IX procedures, adopted in 2014, also state that “Within seven days of the filing of a complaint, a Deputy Title IX Coordinator or designee will generally initiate a meeting with the respondent.”

Jane was interviewed yet again on Feb. 24, 2016. This time she said Doe was “strange” and “creepy.”

Asking questions

Doe was finally interviewed by Barnett and Shaffer, the Title IX coordinator on March 7, 2016.

Doe’s motion before the court includes notes from the UC investigation. In a stark difference to notes about interviews with Jane, the notes about Doe’s interview contain editorial comments from Shaffer, including a line claiming “Several times during the interview [John Doe] appeared to be processing to himself out loud.”

Jane was interviewed yet again on March 15, 2016, and this time said she did not tell Doe she did not want to have sex after he retrieved a condom, but instead said she tried to “redirect” him. She also acknowledged that she consented to certain sexual activity.

Barnett, UC’s Title IX program director at the time, had told Doe that she would interview witnesses on his behalf who knew where he was “during the incident alleged.” Barnett, however, interviewed multiple witnesses on behalf of Jane who had no first-hand knowledge of the incident.

Jane did not show up for the Administrative Review Committee (ARC) hearing on the case, thus denying Doe a chance to cross-examine her. Neither Doe nor Jane presented witnesses at the hearing. A Title IX coordinator didn’t attend the hearing. Doe was not told ahead of time that Jane would not attend the hearing. He had prepared multiple questions to be asked of her (most schools do not allow traditional direct cross-examination but may allow students to submit questions to be asked of the opposing party).

Instead of any kind of a traditional hearing, the ARC Chair read a summary of the Title IX investigation file, which included statements from Jane, Doe and Jane’s witnesses. Normally, UC required such statements in the absence of the actual person to be notarized, but these statements were not. UC officials claimed in court that they didn’t need to notarize the statements because they notified Doe of the charges against him. The university cited two court cases in its defense of this matter, but as Barrett wrote in his decision, those two cases “do not address whether a statement must be notarized in accordance with a school’s own procedures.”

During Doe’s hearing, the ARC Chair explained that normally the committee would be allowed to ask questions of the accuser regarding the Title IX report, but since she was not there, they would just move on. The chair asked Doe if he had any questions regarding the report.

“Well, since she’s not here, I can’t really ask anything of the report,” Doe responded. “Is this the time when I would enter in like a situation where like she said this and this never could have happened?”

The ARC chair told him he’d have time “in just a little bit to direct those questions.”

But after that, the ARC chair concluded the Title IX presentation, and again said that if the accuser had been there, Doe could have asked her questions. Doe was then allowed to summarize his side of the story.

Doe and his attorney told the court that had he been allowed to cross-examine Jane, he “could have questioned her about inconsistencies in her statements and the accommodations Jane Roe likely received from UC, such as changes in homework deadlines, grades, classes, schedules, and examination schedules or, in certain instances, job opportunities.”

Doe said he could have “demonstrated issues of credibility and that the accommodations provided to Jane Roe created a significant incentive for her to fabricate the allegation of sexual assault.”

UC countered that the district court in which this case was being heard had recently stated that “there is no general due process right to cross examine witnesses in school disciplinary hearings.” Barrett, however, included a clarifying statement from the same court, which concluded that cross-examination was essential in cases where there was a choice between believing an accuser or the accused.

Barrett also held that allowing students to submit written questions to be asked of opposing parties, as UC does, doesn’t necessarily violate due process rights. But in Doe’s case, because Jane did not attend the ARC hearing, and Doe was not notified in advance of this, he was not able to cross-examine her.

“While this is not to say that UC’s procedures must require the complainant to be present, at the very least, Plaintiff should have had the opportunity to submit written cross-examination questions to the ARC Chair in accordance with the Student Code of Conduct,” Barrett wrote.

Thus, Doe “adequately demonstrated that there is a likelihood of success on the merits of Plaintiff’s due process claim,” Barrett wrote.

Barrett also concluded that if the suspension against Doe was not halted, the UC student would face irreparable harm to his future. He also found that since UC permitted Doe to remain on campus during the investigation, it didn’t see him as a risk to other students.

‘Pleased with this decision’

The decision from Barrett is a win for accused students because it affirms the importance of being able to cross-examine one’s accuser.

In a statement to Watchdog, Doe’s attorney, Joshua Engel, praised the court’s decision.

“We are very pleased with this decision,” Engel said. “We are especially pleased that Judge Barrett recognized that cross examination is vitally important in the ‘he said, she said’ type cases. Without cross examination, an accused student has no ability to effectively challenge the credibility of his accuser and allowing an accuser to hide behind an investigative report undermines the reliability of any decision.”

Colleges can’t typically respond to the specifics of these cases, but UC spokesman Greg Vehr told WCPO-9 that the school would comply with Barrett’s decision.

“[UC] makes every effort to follow all Department of Education requirements and guidelines to resolve sexual assault and other Title IX-related complaints, and to continually monitor and update the processes we use in responding to any incident of sexual misconduct reported to us,” he said.

Part of 5 in the series Due Process Wins