The statistics are alarming: 23.1 percent of female undergraduate students and 5.4 percent of males are victims of rape or sexual assault. Prompted in part by a U.S. Department of Education 2011 letter written to colleges receiving funds under Title IX of the Education Amendments Act of 1972, academic institutions began taking a hard line against students accused of sexual assault.
This resulted in many situations where guilt was assumed. In turn, it put the burden on the accused to prove innocence. A recent decision by the U.S. Court of Appeals for the 6th Circuit (involving the University of Michigan) says schools may have gone too far in their efforts to protect victims and trample on the due process rights of the accused.
The case before the U.S. Court of Appeals for the 6th Circuit began in 2017 when a lawsuit was filed on behalf of a student at the University of Michigan. The lawsuit claimed the student's due process rights had been denied during hearing on an alleged violation of the university's sexual misconduct policy. Specifically, the student claimed the denial of the right to cross-examine the student making the accusation was a due process violation, because credibility was at issue.
The Sixth Circuit agreed with the accused student and cited its 2005 decision in which the court ruled that cross-examination of the accuser must be allowed when credibility was at issue in a disciplinary proceeding at a college or university. The court ruled the proceedings at the University of Michigan warranted allowing the accused to cross-examine the alleged victim and any witnesses offered in support of the allegations of sexual misconduct.
Giving the accused the right to cross-examine the accuser was referred to by the court as fundamental to the process of uncovering the truth. As such, the denial of the right was a violation of the due process rights of the accused.
A policy shift at the DOE began with rescinding the 2011 letter it sent regarding the handling of sexual assault complaints. It also announced it would be proposing sweeping changes to the procedures schools would be required to follow with regard to their handling of sexual assault complaints, including changes to how school disciplinary hearings would be conducted.
According to a report by The New York Times, the DOE intends to limit sexual misconduct complaints schools would be required to investigate to incidents that prevent a student who is victimized from making full use of the activities and programs the college or university has to offer. It would also grant the right of cross-examination to students accused of misconduct and require schools to provide them with written notification regarding the full details of the allegations.
The proposed changes, according to the Times, would also include a change in the burden of proof at disciplinary hearings. Schools would be allowed to adopt a clear and convincing standard requiring proof there is a high probability of truth to the allegations. This burden would replace the current preponderance of the evidence standard. Preponderance of the evidence requires proof that the allegations are more likely than not true.
The decision by the Sixth Circuit and the proposed DOE rules do not sacrifice the rights of victims in favor of those facing allegations of wrongdoing. Due process simply ensures fundamental fairness in disciplinary proceedings across the board.
Some people have raised the point that cross-examination forces an already traumatized victim of sexual assault to be further traumatized. Regardless, the Sixth Circuit ultimately acknowledged that cross-examination offers the best method for arriving at the truth. It ensures a balancing of the rights of the victim and the accused.