USA TODAY International Edition
Colleges rethink sex assault claims
Federal cases put the process in spotlight
DETROIT – A series of federal cases in the Midwest is likely to shift the way universities investigate sexual assault claims on their campuses.
The change is praised by those who say universities have weighted the process in favor of the mostly female students who file the complaints. Opponents say the move will have a chilling effect on students reporting sexual assaults.
On the way out is a process that puts the onus for collecting information on a staff member, who interviews the person making the complaint, 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. The reshaping is focused in the U.S. Sixth Circuit Court of Appeals and the courts that make up its district. In all cases, parties argue 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.’”
Schools also are waiting to see if other federal circuits rule on such cases. If judges in other federal circuits issue different rulings and standards, the question 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. 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, as 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 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 of the accuser.
But the female student didn’t attend the hearing. The panel still decided against the male student, who then sued. He said his due process rights were violated. The appeals court ruled in his favor, saying the U.S. Constitution demanded he be afforded due process.
The due process clause guarantees fairness to state university students facing long-term exclusion from the educational process, the court wrote in its September 2017 ruling. The university made a “credibility determination,” the court wrote, “given the exclusively ‘he said/she said’ nature of the case.”
Letting the accused question his accuser would have allowed the person making the judgment to observe “demeanor,” the court said. That helps judge the honesty with which a person is speaking.
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 Michigan 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 the sex was consensual. There was no one else in the room.
Over the next couple of weeks, the female student texted the man and ran into him in a dining hall. They had dinner together, the lawsuit said, but didn’t have sex. At one point, the young woman 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 offer only friendship.
Shortly after that, a complaint alleging that the sex was non-consensual was filed with the university by the female student.
In early April, the male student was issued a no-contact order.
There hasn’t been any finding yet from Michigan about whether the male student violated the school’s sexual misconduct policy, but he filed suit after the university held up his transcripts.
In July, U.S. District Judge Arthur Tarnow of the federal Eastern District of Michigan used the full 6th Circuit rulings on the question to force Michigan to hold a live hearing in the case. Because the university used private questioning, the male student had no way of knowing which questions the university asked his accuser or what she said in response, Tarnow wrote.
“Without a live proceeding, the risk of an erroneous deprivation of plaintiff’s interest in his reputation, education and employment is significant.”
Michigan 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 Michigan case.
If judges in other federal circuits issue different rulings and standards, the question could end up at the U.S. Supreme Court.