Judges changing the way universities handle sexual assault investigations

David Jesse | Detroit Free Press

A series of federal cases in the Midwest is likely to shift the way universities investigate sexual assault claims on their campuses.

On the way out is a process that puts the onus for collecting information on a staff member, who interviews the person making the claim of a sexual assault, the person accused of the sexual assault and any witnesses.

On the way in is more opportunity for the two sides to ask questions of each other, with some judges saying there needs to be a live hearing with all parties present, even if it's through something like Skype.

It's a change being praised by those who think universities have weighted the process in favor of the mostly female students who file the complaints and condemned by those who say the move will have a chilling effect on students reporting sexual assaults.

The reshaping is focused in the U.S. Sixth Circuit Court of Appeals and the courts that make up its district. There's been a ruling by the appeals court and one by a federal court in Michigan shaping the movement. Another case is pending before the appeals court, while another case in a federal court based in Michigan is also pushing for the change. All the cases are federal cases, with arguments that the universities are violating the U.S. Constitution's due process protections.

"I think it's a game changer," Saundra Schuster, an attorney and partner at the NCHERM Group, which advises and trains universities on how to investigate sexual assault cases. "I'm saying to my clients right now, 'If you have a case where you don't have collaborative evidence, you must provide a live hearing. We've got cases with rulings by the full (appeals court) and district courts .... saying that if the case hinges on the credibility of those involved, they (those involved) have the right to pose questions of each other."

The cases will likely cause public universities to ponder their current approaches, said Kathryn Nash, an attorney with Gray Plant Mooty in Minneapolis. She conducts trainings and investigations for universities.

"I expect the general counsel's offices at public university are having these discussions and weighing what is right for their campuses," she said. “I would expect to see more challenges” in the courts over how public universities provide due process rights to students.

Both Schuster and Nash said schools also are waiting to see if other federal circuits rule on these types of cases. If judges in other federal circuits issue different rulings and standards, the issue could end up at the U.S. Supreme Court.

"Fundamentally unfair"

The first ruling came in a case coming out of a hook-up on the campus of the University of Cincinnati.

The two students met on the dating app Tinder. After talking back and forth for a couple of weeks, they met in person. The two aren't identified by name in court records.

The male student invited the female student back to his apartment. The two had sex.

But then, like in many cases, the stories diverged on whether the sex was consensual. The female student said it wasn't, and filed a complaint.

According to the process used there, both students were to come before a hearing panel. At the panel, the accused student could submit questions to the head of the panel, who would then ask the questions to the accuser.

However, the female student didn't attend the hearing. The panel still found against the male student, who then sued, saying his due process rights were violated.

The appeals court ruled in his favor, saying the U.S. Constitution demanded he be afforded due process.

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The due process clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process, the court wrote in its September 2017 ruling. "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."

The court went on to say that having the accuser being questioned by the accused would allow the person making the judgment to observe "demeanor," which would help them judge the honesty with which a person was speaking.

"That said, we acknowledge that witness questioning may be particularly relevant to disciplinary cases involving claims of alleged sexual assault or harassment," the court said. "Perpetrators often act in private, leaving the decision maker little choice but to weigh the alleged victim’s word against that of the accused."

The court ruled it was fine with letting the accused submit questions to the head of the panel to ask the accuser. It also said the accuser could appear remotely, via Skype or the like, if that made the accuser more comfortable.

A lower court ruling

Another case is tied to the University of Michigan.

In November 2017, a female student contacted a residential adviser in a U-M dorm — as she had before — and asked him about getting together. He invited her to his room. They watched a movie and had sex. He said it was consensual. There was no one else in the room.

Over the next couple of weeks, the female student texted the male and ran into him in a dining hall. They had dinner together, the lawsuit said, but didn't have sex. At one point, the female asked about having more sex and also asked what the relationship between the two was now that they'd had sex. The male student responded he could only offer friendship.

Shortly after that, a complaint alleging that the sex was non-consensual was filed with the university by the female student and, in early April, the male student was issued a no-contact order, barring him from being anywhere around the female.

There hasn't been any finding yet from U-M about whether the male student violated the school's sexual misconduct policy, but he filed suit after the university held up his transcripts, meaning he couldn't use them to get into a graduate school.

In July 2018 U.S. District Judge Arthur Tarnow of the federal Eastern District of Michigan used the full 6th Circuit rulings on the issue to force U-M to hold a live hearing in the case.

"Unlike the policies which the 6th Circuit has upheld, this Policy deprives

Plaintiff of a live hearing and the opportunity to face his accuser. Because of the

University’s method of private questioning through the investigator, Plaintiff has no

way of knowing which questions are actually being asked of Claimant or her

response to those questions.

"Without a live proceeding, the risk of an erroneous deprivation of Plaintiff’s interest in his reputation, education, and employment is significant. Additional procedural safeguards would both assist the truth-seeking process and help to ensure the protection of Plaintiff’s constitutional rights."

More rulings coming

It took a panel of three judges at the Sixth Circuit appeals court about five minutes to interrupt an attorney representing the University of Michigan and question him extensively about how the university's policy protected the due process rights of students accused of sexual assault.

They asked attorney David DeBruin to explain why the university let students accused of any other violation of the school's conduct code to have a live hearing with the opportunity to ask questions of the person accusing them, but didn't do the same for students accused of sexual assault.

Instead, the university has a paid staff member interview both sides, along with any witnesses, and create a report with a recommendation of whether the person violated the sexual misconduct code.

The process done in sexual assault cases, was "better in many ways, more detailed," DeBruin argued, according to an audio recording of the oral arguments in the case posted on the court's website.

That didn't fly with the judges.

"Making findings based on interviews is not what I think of when I think of a hearing," Judge Julia Smith Gibbons said.

DeBruin tried again to make the same argument, saying the process in the sexual assault case created a "more detailed" record for a judgment.

So why not follow the same procedure in other, non-sexual assault cases, Judge Amul R. Thapar asked.

The response? The university had "in its judgment" decided this way was better.

That didn't sit well with Thapar, who accused U-M of ignoring “everything courts have ever said, including the United States Supreme Court, about cross-examination."

Thapar said the court has made it clear how fundamental cross-examination is, under the due process clause, when credibility is at issue.

"And what you’re saying is, ’Trust us, not the Constitution, and let the university tell you what’s sufficient.’”

Gibbons also was frustrated. “I can’t get past the university’s indifference, defiance, or whatever you want to call it, to our circuit precedent and to the basic principle."

The case is over a late-night party at a fraternity house and a sexual encounter between a male student and a female student.

No ruling has been issued.

U-M isn't the only university facing a challenge to its process under these due process rulings. In a lawsuit filed by former Michigan State University football player Keith Mumphery against the university, his attorneys have said Mumphery's due process rights were violated because he didn't get a live hearing with a chance to ask questions of his accuser. The case cites the Tarnow ruling in the U-M case.

The impact

Deciding to walk into Olds Hall on the campus of MSU and file a report saying that a professor has groomed her during her time at the East Lansing school, turning a mentoring relationship into a sexual relationship was hard.

Waiting for 117 days a ruling was excruciating. She lost weight. She had her now-fiancé call investigators for updates because she was too scared to do it. It was, she said, the worst four months of her life.

She can't imagine having to add in facing her attacker.

"It seems to me that once again the enormous burden of proof is being shifted to the accuser," the woman, whose story was previously reported by the Free Press, said. "And more importantly, it highlights the way that society reflexively treats women with suspicion.

"I would also add that the people in support of these live hearings don't seem to understand the power dynamics at play here. If a person already sexually assaulted me — already took all of my power and agency away from me — it's going to be difficult for me to believe that he can't do it again as he's sitting there cross-examining me.

"If this practice would have been adopted in my case, I would have felt that the cards were stacked against me before I even had the chance to come forward. I probably still would have reported him, but I would have been an unstable emotional mess if I had to endure his questioning me in front of investigators. Which really would not have lended itself to my believability."

But cross-examination is the best way to protect everyone's interest, said Deborah Gordon, the attorney in both of the U-M cases.

"Cross-examination if the best way to get to truth," she said. "They (U-M) let every other kid in that school, even someone who murdered someone, have a live hearing and the opportunity to cross-examine their accuser."

The difference here, she added, was that U-M, and other schools, are predisposed to believe the accuser.

"You have to be your own advocate," she said. "This is the only way you can do that."

The Sixth Circuit — which covers Michigan, Ohio, Kentucky and Tennessee — is so far the only federal circuit to issue rulings demanding universities have live hearings and the opportunity to cross-examine.

"I'm not sure whether other (federal circuits) will follow, but certainly if you are a university in the Sixth Circuit and you have a case where credibility is the issue, you need to hold these hearings," Schuster said. "There has been a trend of more lawsuits and I think that will continue."

Nash said she represents a lot of universities that use the investigation method.

"I think you can have a lot equity" and fairness in that model, she said. "I think they work very well."

Contact David Jesse: 313-222-8851 or djesse@freepress.com. Follow him on Twitter: @reporterdavidj