The Education Dept. Would Let Students Question Their Rape Accusers. At Some Colleges, That’s Already How It Works.

Education Secretary Betsy DeVos has proposed amending the rules for enforcing the gender-equity law known as Title IX, to guarantee the right of people accused of sexual misconduct to cross-examine their accusers through a representative. As colleges reckon with how to insert live hearings into cumbersome investigation processes, some institutions are already required to have those measures in place.

Colleges in states covered by the U.S. Court of Appeals for the Sixth Circuit — Kentucky, Michigan, Ohio, and Tennessee — must allow live hearings in cases of sexual misconduct as a result of a 2018 court decision, Doe v. Baum.

Before punishing a student for sexual misconduct, Doe v. Baum mandated, a college or university must hold a hearing and allow the accused to cross-examine the accuser if credibility is in question. Advocates say the practice protects due-process rights, but opponents say in-person hearings can retraumatize victims by forcing them to answer questions from their alleged abusers.

Since the ruling, however, colleges in the Sixth Circuit have come up with wide-ranging interpretations of Doe v. Baum’s mandates.

Doe and Due Process

The University of Michigan at Ann Arbor didn’t hold a live hearing when John Doe, the nameless plaintiff in Doe v. Baum, was accused of sexual misconduct. Doe’s account of events varied from that of his accuser, so the university should have given him the opportunity to cross-examine her, the appellate court ruled.

After unsuccessfully fighting the decision, the university released an interim sexual-misconduct policy that requires in-person hearings. It was met with a backlash from students and legal experts alike.

Michigan’s policy, which allows the accused to cross-examine the accuser and witnesses, goes further than DeVos’s proposed changes in Title IX rules. Under the proposed rules, cross-examination would be carried out in a live hearing by a lawyer or other adviser, but the parties could opt to be in separate rooms, using technology to communicate if needed.

Bonsitu Kitaba, a staff lawyer with the American Civil Liberties Union of Michigan, blasted the university’s strict interpretation of the Doe v. Baum ruling. The ACLU supports due process, Kitaba said, but Michigan’s process seems dangerous for survivors of sexual assault.

“They chose an approach that will traumatize more students that are going through the process on both sides,” Kitaba said. “And I think that it will also deter many, many students from ever filing complaints because they would never want to face their alleged abuser.”

But Rick Fitzgerald, a Michigan spokesman, said the university felt boxed in by the court ruling, although the appellate judges in Doe v. Baum cautioned against allowing plaintiffs and respondents to question each other. The university worried that, if students could use private lawyers for cross-examinations, those who couldn’t afford a lawyer would be put at a disadvantage.

Additionally, Fitzgerald said, lawyers are often brutal in their questioning. “Attorneys will have essentially an ethical obligation to try to destroy the other party,” Fitzgerald said. “And we think that would be actually a worse situation for our students to go through that.”

Differing Interpretations

Not all colleges in the Sixth Circuit adopted the literal approach that Michigan did. An hour away, in East Lansing, Michigan State University prohibits the accused and the accuser from directly cross-examining each other.

“Having somebody asked questions of you who you have maybe submitted a report about can be very intimidating,” said Katie Bylenga, interim director of the resolution office at Michigan State, “and we want the parties to participate in the process so that they have an opportunity to be heard.”

Students may have a representative of their choosing, including a lawyer, for the hearing process, Bylenga said. The university also offers trained advisers, free of charge, to students who do not have their own.

Both Bylenga and Fitzgerald said their universities’ hearing processes had been devised with trauma mitigation in mind. At Michigan State, representatives have a dual purpose: In addition to representing students in hearings, they’re trained to connect them to assistance on the campus. At Michigan, students have access to a sexual-assault prevention center with resources for survivors.

Other flagship colleges in the Sixth Circuit have also added hearings to their Title IX process. At the University of Kentucky, a hearing officer carries out the cross-examination using questions submitted by the respondent and the university prosecutor.

“The respondent, the respondent’s attorney (if any), and the university counsel will also be given an opportunity to examine and cross-examine witnesses who testify at the hearing,” Kentucky’s policy reads, “but the respondent or the respondent’s attorney may not cross-examine the complaining witness and the university counsel may not cross-examine the respondent. Instead, they may submit questions to the hearing officer to ask on their behalf.”

A spokesman for the University of Kentucky declined to comment on the policy.

The University of Tennessee at Knoxville included opportunities for cross-examination before Doe v. Baum was decided. Six women sued the university in 2016, alleging that its legalistic policy was biased against victims, according to the Tennessean. A spokesman for the university said the policy complies with Doe v. Baum and other relevant cases from the Sixth Circuit but declined further comment.

Alternative Reporting Path

Since Michigan updated its investigative process to include hearings and potential cross-examinations, more students have been opting to pursue an informal route when reporting sexual misconduct.

When complainants take that approach, known as an adaptable pathway, there is no formal disciplinary action against a respondent. A university report described the increase in the number of such cases as “significant” when compared with previous years.

“This is the first year in which any students have elected to switch from the investigative pathway to the adaptable pathway midprocess,” the report says, “and the 12 cases that proceeded to adaptable resolution this year represent a significant increase.”

The report notes that some claimants “who wanted university action taken in response to their concerns also expressed hesitation about pursuing an investigative resolution in light of the addition of a hearing and direct cross-examination” in the policy instituted after Doe v. Baum.

Emma Sandberg, a sophomore and student activist at Michigan, said she knows of people who declined to report a sexual assault for fear of having to be cross-examined. Sandberg and other students have formed a group, Roe v. Rape, to combat the university’s interim policy.

The group wants cross-examinations to be conducted by personal advisers or lawyers instead of the accused. Despite the urging of faculty members, students, and the ACLU, Michigan has held firm that it is boxed in by Doe v. Baum’s requirements.

Bennett Leckrone is an editorial intern at The Chronicle. Follow him on Twitter @LeckroneBennett, or email him at bennett.leckrone@chronicle.com.