Title IX, and the controversy over the right of an accused student to cross-examine the accuser, in a sexual misconduct hearing.
The problem that survivors of sexual assault in college face is re-traumatization. Surely no one disagrees that if a man or a woman experiences rape, to talk about it again, will cause hurt. Thus, activists against sexual assault on campus, argue that a sexual assault complaint in college should not require the victims, who already have to come up with a lot of emotional strength to complain in the first place, to have to face their accused in a cross-examination that will challenge the truth of what they say. (1). The conflict arises because this position not only prevents the man from establishing his innocence (2), but it also goes against the tradition of confronting your accuser — which while not unique to United States law, is actually mentioned in the United States Constitution (3).
In practical terms, at its ideal and most clear instance, activism against cross examination poses the question: Why should the school force a woman-student who was raped to face her student-rapist who will ask her questions to debunk the fact that he raped her? In equally practical terms, at its ideal and most clear instance, Title IX respondents pose the countervailing question: Why should the school prevent a man-respondent who raped no one to not show that the woman-complainant is saying things that do not constitute rape? The conflict is inevitable because schools become a court under Title IX.
A lot of this tension also responds to the historical moment in the US and its effect on campus culture — including, particularly, the way that Title IX staff react. While Title IX staff in the past could sweep sexual assault allegations under the rug, today, they get sued with massive damage to their employer’s brand as a result. (4). In addition, the country is in the middle of a patriarchy crisis. Today the U.S. has an executive who flaunts the sexual decorum usually expected from every elected official and is perceived as a sexual harasser, at best. (5). To add just the right fuel to this on campus cultural fire, today the U.S. has a generation of young men and women that cuddle (6) but come across as lacking grit(7). Luckily, as usual, the U.S. campus life has a wonderful, vibrant and wealthy culture of intersectionality (8) which fosters a re-thinking of power roles from all parties. Today, the men who sue their schools under Title IX for anti-male bias victimization invoke the intersectional framework because anti-male bias makes them the weak party. For today, in US campuses, preventing re-traumatization seems more worthy than honoring a historical tradition of finding the truth through confrontation to benefit the newly weak. Intersectionality shows that that truth escapes the weak.
And perhaps in the most clear-cut cases, preventing re-traumatization does matter more. The real problem is the massive, documented history of complainants bringing either unclear claims of sexual assault or else claims that do not meet the standard for sexual assault and then claiming the re-traumatization argument. In these instances, the man is the new weak party. That is to otherwise say that the weaker the claim of sexual assault, the less compelling the re-traumatization through cross-examination becomes in a system that always holds men in the weaker role.
On weak cases, cross examination is a must particularly because the impact of a sexual misconduct finding is horrible. “Students expelled for sexual misconduct are virtual pariahs when they seek admission to other universities, and those closer to graduating frequently lose job and graduate school offers as well. Depression, anxiety, and even suicide attempts are common.” (9) Consider just one example out of the many cases filed in courts in the United States where the woman who complained made a legally unclear statement — something that demands cross because of the huge loss to the respondent that she puts at stake. In Doe v. Washington & Lee Univ., №6:14-cv-00052, 2015 U.S. Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015) the facts the Court stated in allowing this Title IX male-bias lawsuit to continue state “gray rape” meaning that Jane Doe changed her mind well after the sexual encounter and the school ran with that to destroy Doe’s life:
“On Saturday, February 8, 2014, Plaintiff and Jane Doe encountered one another at a party held off campus, whereupon they talked, danced, and “made out.” Jane Doe drank alcohol at the event, and claimed that while her memory of that night was “fuzzy,” she was not incapacitated or “blacked out.” ….In September 2014, Jane Doe applied for a study abroad program in Nepal. When she saw the list of applicants, she noticed that Plaintiff had applied as well. Shortly thereafter, she visited a therapist and described to her “an evolution about how she felt about” her initial sexual encounter with Plaintiff, and that she had “a strong physical reaction” to seeing Plaintiff’s name on the Nepal program’s acceptance list…. On October 5, 2014, Jane Doe attended a presentation put on by W&L’s Title IX Officer, Lauren Kozak (“Ms. Kozak”). During Ms. Kozak’s presentation, she introduced an article, Is it Possible That There Is Something In Between Consensual Sex And Rape . . . And That It Happens To Almost Every Girl Out There?, and discussed it with the members of SPEAK, a W&L student organization, to make her point that “regret equals rape,” and went on to state her belief that this point was a new idea everyone, herself included, is starting to agree with… On October 30, 2014, the list of students attending the semester abroad in Nepal program was made public; both Plaintiff and Jane Doe were selected. The next day Jane Doe decided that she wanted to proceed with an investigation of Plaintiff and she contacted Ms. Kozak to request as much.”
The whole decision is available here: https://law.justia.com/cases/federal/district-courts/virginia/vawdce/6:2014cv00052/96678/54/
In addition, none of these sexual misconduct complaints, even if organized along a spectrum from clear, to not clear, to does not meet the standard at all, in my opinion, matter to the school staff who are just Title IX-world employees bent on keeping their careers and maintaining the school’s brand (10) to the extent and to the result that they are told to. Thus, the Title IX staff culture, all women (11), all systemically geared towards anti-male bias (12), also requires cross as it is the interaction between the Title IX staff and the complainant that often shows where the lie lies and it is the man who is always the week party at that point.
The new rules that the Department of Education will soon publish on Title IX will require equal treatment for women and for men, for complaints and for responses. (13) That equal treatment inheres cross-examination. This will force the Title IX staff to work. (14). It will also scare some into silence. But it will improve the chances that a man facing a sexual misconduct investigation can document the truth of his denial of this misconduct. Surely not all respondents of sexual misconduct will deny their charge. But some will. And it seems to me a fundamental tenet of liberal, progressive legal norms that schools should give the accused that chose to do so, every chance to prove their innocence. That tenet trumps the re-traumatization concern of cross examination in a student on student sexual misconduct complaint.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. This is a Canadian view on how to actually cope with this re-traumatization during cross examination in an actual criminal trial. While this paper assumes the cross examination will happen, it simultaneously argues for “trauma informed” techniques to help out the witness/victim. These techniques are generally considered circumstantial evidence of anti-male bias when applied to in-school sexual misconduct proceedings and thus in violation of men’s rights under Title IX:
“Throughout the process of narrating her sexual assault and her reactions to it, the victim-witness, who has typically been isolated and without support, by herself in the witness box, must, under persistent and challenging questioning, lay bare her experience of being violated. All the while she is both under intense scrutiny from the various courtroom players, and also aware that she must mentally prepare for the adversarial and often hostile attack of defense questioning, after she has provided the evidence in chief. The Crown thus has a particular responsibility to prepare the victim-witness thoroughly and sensitively, and to lead the examination-in-chief in a trauma informed manner.”
Dr. Lori Haskell, C. Psych, The Impact of Trauma on Adult Sexual Assault Victims 2019, at 32, available at: https://www.justice.gc.ca/eng/rp-pr/jr/trauma/trauma_eng.pdf
2. The notion that those accused of sexual misconduct in school should be able to adequately defend themselves has caused vigorous complaints within faculties, particularly those at Harvard Law School and Penn Law School. See, e.g., : https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/15/28-harvard-law-professors-condemn-harvards-new-sexual-harassment-policy-and-procedures/ and see: Open Letter from Members of the Penn Law School Faculty, Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities, Wall St. J. Online (Feb. 18, 2015), http://online.wsj.com/public/resources/documents/2015_0218_upenn.pdf; Zimmerman, J., We’re casual about sex and serious about consent. But is it working? (Oct. 13, 2015), https://www.washingtonpost.com/news/in-theory/wp/2015/10/13/were-casual-about-sex-andserious-about-consent-but-is-it-working/?utm_term=.8e744b0025b0.
3. US Constitution, 6th Amendment, Confrontation Clause: “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” https://en.wikipedia.org/wiki/Confrontation_Clause
4. As Title IX staff in every school in the US are well aware, activists are ready and able to guide new female complainants into media “storytelling” to advance their (no doubt worthy) point of view. In this example, EROC, a leading activist, even provides a link in their web page to learn about press conferences:
“Title IX Complaints and the Media
Through storytelling and collective action, survivor activists have brought the issue of campus sexual assault to the nation’s attention. If a survivor wishes to come forward, we are able to assist with media outreach. For example, we have organized press conferences and written press releases announcing the filings of federal complaints, connected journalists with survivors for stories related to the issue of campus sexual assault more broadly, and helped survivors raise their voices in opinion pieces across the country.
That being said, EROC recognizes that it is deeply troubling that the burden of addressing sexual violence has historically fallen on the shoulders of survivors. Speaking publicly about these experiences is often difficult, and it is understandable to refrain from doing so. The healing of survivors is paramount, and we will respect your decision regardless of whether you tell your story to anyone else.
If you are interested in learning more about coming forward in the media about your story (anonymously or named) please fill out this form here.” Available at: https://endrapeoncampus.org/title-ix/#media
5. https://en.wikipedia.org/wiki/Donald_Trump_sexual_misconduct_allegations
6. https://www.hercampus.com/sex-relationships/dating/lets-snuggle-look-prevalence-cuddling-campus
7. For sure, go ahead and take the grit challenge from grit-savant Angela Duckworth: https://angeladuckworth.com/grit-scale/
8. I went to UCLAw to study intersectionality. I take it seriously. Intersectionality means many things but represents a struggle for the weak. “Less benign are claims that intersectionality sets forth a reverse hierarchy of oppression, creating a new class of pariahs among people who do not typically face intersecting forms of exclusion. Yet even these critics of intersectionality inadvertently seem to embrace the idea: Their grievance foregrounds the presumed impact of the concept on what many would call an intersectional group — straight white men.” https://law.ucla.edu/news-and-events/in-the-news/2019/10/Intersectionality-at-30-Kimberle-Crenshaw/
9. Samantha Harris, FIRE Blog, January 15, 2020: Brett Sokolow criticizes live hearings and cross-examination, suggests there may be ‘clever work-arounds’, available at: https://www.thefire.org/brett-sokolow-criticizes-live-hearings-and-cross-examination-suggests-there-may-be-clever-work-arounds/
10. Title IX staff have little career growth and they are thus recycled from one college to the next. See, e.g, https://helpsaveoursons.com/life-inside-the-title-ix-pressure-cooker/
14. “Drag your feet on implementation and responding parties will sue the minute you are not according them the full panoply of rights OCR has promised them. Fail to provide the responding party with a copy of the investigation report or sufficient time to prepare for a hearing and you should expect a motion for a temporary restraining order from their lawyer.
The catch-22 is that when you move to compliance, activists will sue to argue that the regulations are ultra vires and anti-victim expansions of agency authority. They will surely challenge provisions that require disclosure to responding parties all evidence provided by reporting parties, even when that evidence is not admissible or used to support a decision.”
Brett A. Sokolow, OCR is About to Rock our Worlds, Inside Higher Ed, January 15, 2020, available at: https://www.insidehighered.com/views/2020/01/15/how-respond-new-federal-title-ix-regulations-being-published-soon-opinion?utm_source=Inside+Higher+Ed&utm_campaign=aae76a7feb-DNU_2019_COPY_02&utm_medium=email&utm_term=0_1fcbc04421-aae76a7feb-198217881&mc_cid=aae76a7feb&mc_eid=b9d1a6cadc&fbclid=IwAR0hznborSK6WGVPjyMxXdHYAe-JLP11QaoqpTDp2Zv6PeB7r9NM4Xwyh3w
