False allegations of sexual assault are life-changing for the accused. They face felony criminal charges, the potential for years of their life in prison, loss of employment, loss of friends, ridicule in the community – and that is often based on the allegation alone.
University students falsely accused of sexual assault often face another layer of difficulty. When a report of sexual assault is made on campus, the accused is often investigated both by the police and by the university; specifically, the university’s Title IX office. Even if criminal charges are never brought, the accused student is subject to disciplinary proceedings through the university, and navigating that process can be incredibly difficult.
University disciplinary proceedings don’t have the same protections as a criminal jury trial. Students often are not allowed to have an attorney represent them at the hearing. They are not allowed to confront their accuser, to engage in cross-examination, or present testimony from their own witnesses. Any statements made at the disciplinary proceedings can be used against the student in a criminal trial. The standard of proof is frequently a preponderance of the evidence standard, meaning that the disciplinary committee deciding the student’s case has to find only that it is more likely than not that the student violated the university’s code of conduct. Compared to the standard of proof at a criminal trial, beyond a reasonable doubt, the accused faces an uphill battle.
The Sixth Circuit Court of Appeals recently held, however, that students facing suspension or expulsion from a university based on sex assault allegations which required the university to make a credibility determination (he said/she said case) are entitled to additional due process in confronting their accuser through cross-examination. John Doe v University of Cincinnati (UC), et al. provides for a version of cross-examination of the accuser in cases where the accused is denying the conduct described by the accuser.
Confrontation of one’s accuser is an important trial right. However, in university disciplinary proceedings, the ability to confront one’s accuser is often non-existent. In Doe v UC, the university provided for some cross-examination of the accuser through written questions submitted to the disciplinary committee ahead of the accuser’s testimony, per their policy. However, UC’s policy did not require the accuser to attend the disciplinary hearing. Therefore, if the accuser chose not to show up at the disciplinary hearing, any mechanism for questioning the accuser was lost.
That’s precisely what happened to John Doe. His accuser failed to appear at the hearing, and the disciplinary committee relied upon the accuser’s statements to university investigators to make a determination that John Doe was responsible for a sexual assault that he denied committing. Even though the disciplinary committee was not able to hear directly from the accuser, and despite being unable to present the accuser with the proposed written questions from the accused, the university made the decision to find John Doe responsible, and suspended John Doe for two years.
Situations like that in Doe v UC happen far too frequently. Students are falsely accused of sexual assault, and there are severe consequences. Even when students win their separate criminal cases, the consequences imposed by the university disciplinary committee often change the course of these students’ lives. The students have to put their schooling on hold. They can’t transfer to another school because of the disciplinary history. They struggle to find employment, because they have to explain why they haven’t finished school. Even when they are able to return to school after a suspension, it leaves them with a hole in their resume that they forever have to try to explain to employers. They often are not permitted to live on campus, increasing the expense of continuing to attend school. A student’s future that may have once held a promising career often turns into a struggle to simply maintain any employment at all.
The Sixth Circuit, in Doe v UC, held that John Doe, when he was denied any opportunity to cross-examine his accuser in the disciplinary proceedings, did not receive sufficient due process such that the university could be justified in issuing a suspension.
While the court found that cross-examination of the accuser is not always required in university disciplinary hearings, due process requires that some form of cross-examination and confrontation of the accuser must be permitted in a case where credibility of the accuser and the accused is a key issue in the hearing. Further, the more serious the possible discipline, the more due process is required.
So, what does this mean for those currently facing sexual assault allegations in a university setting?
First, if a student is accused of sexual assault at a college or university, he or she needs to hire a lawyer. One, anything said to university investigators or to the disciplinary committee can be used to bring criminal charges against the student, in addition to the disciplinary proceedings. The disciplinary proceedings need to be carefully navigated by the student to try to prevent discipline from the school, while still protecting themselves from criminal prosecution. Also, the accused student will need assistance in ensuring that the university provides them with the maximum due process available. While the university rules may not permit a lawyer to represent an accused student at a disciplinary proceeding, the lawyer can still guide the student through the process, and help the student formulate cross-examination questions that can be submitted to the accuser. If the student is disciplined by the university, his or her attorney can seek relief in federal court when the university has failed to provide the accused student with sufficient due process.
While students accused of sexual assault face a very difficult battle, the courts are beginning to recognize that the schools cannot take away a young person’s education without providing them with a genuine opportunity to defend themselves.
If you have been accused of sexual assault, Blanchard Law can help. Call 616-773-2945 for more information.
