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Cross-Examinations: Walking The Thin Line Between Retraumatization and Due Process

Posted by Joseph D. Lento | Sep 07, 2018 | 0 Comments

The topic of cross-examinations in adjudication hearings for sexual assault has been a controversial issue in higher education. In the age of Obama-era guidelines, the questioning of an accuser by the accused was vehemently “discouraged” in efforts to avoid the retraumatization or intimidation of an alleged victim. As a result, the vast majority of institutions in compliance with Title IX have abided by this recommendation by forbidding the accused from challenging an accuser's narrative in hearings and investigations.

Due process advocates have always questioned whether this recommendation to disregard cross-examinations undercuts due process rights for respondents. Now, a judge has expressed similar sentiments in a case involving a student from the University of Michigan. A case that many onlookers are describing as a landmark with national implications.

The contentious lawsuit was filed against the University of Michigan in July by an anonymous male student. He alleges that the institution's policies deprived him of due process rights throughout the adjudication process by refusing to allow him the right to question the evidence against him. A restriction that he claims is vital to his defense. The student was accused of rape in April stemming from a sexual encounter that allegedly occurred last November. He asserts that their interactions were consensual. Officials have yet to determine whether he committed the assault.

In agreement with the male student, Federal Judge Arthur Tarnow instructed the University of Michigan to deviate from its policy by conducting a live hearing so that the male student could question his accuser. In the judge's ruling, he claims that the university may be denying the plaintiff essential due process protections to which he is entitled. The judge also concluded that the accused student didn't have to necessarily directly ask his accuser questions, merely that he be given the opportunity to challenge her account of events.

For dedicated due process advocates, the ruling is a major win. One that comes at the cusp of new draft regulations expected from the Department of Education. Whether the department will choose to include live hearings with cross-examinations in its impending guidelines proposal remains unknown.

Nationwide Title IX Advisor

The only way to make sure your voice is heard and your rights are upheld is to retain a student defense attorney. For respondents, especially, the assistance of an attorney advisor is invaluable in the Title IX process. National Title IX attorney Joseph D. Lento has the skill, experience, and expertise to help you preserve your entitled rights under Title IX and your school's policy. For a case evaluation or more information about his representation, contact him online or give him a call at 888-535-3686 today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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