New Title IX Rules on Cross-Examination

New Title IX Rules on Cross-Examination

The United States Department of Education (DOE) recently released its new Title IX rules. By August 14, 2020, schools across the country had to adjust their Title IX procedures to comply with the new changes in regulation. Among the most dramatic changes to the Title IX process are new rules that require cross-examination of accusers and witnesses in live hearings.

If you're a student facing Title IX sexual misconduct allegations, the right to cross-examine your accuser is critical to your defense. Under the new Title IX rules, your school must give you the opportunity to question your accuser and any witnesses who testify against you.

That doesn't mean you get to stand up at your final Title IX hearing and question your accuser face to face. Because of the sensitive nature of sexual misconduct allegations, the Title IX process must balance the interests of the accuser versus the accused. As a result, cross-examination must be carried out under strict conditions.

For students accused of sexual misconduct under Title IX, the chance to cross-examine your accuser is a chance to prove your innocence.

A Title IX allegation of sexual misconduct is a serious offense that could derail your education, career, and life as you know it. Your case could be resolved in just a few months with severe consequences if you're found responsible for the charges against you. Punishments for Title IX sexual misconduct violations include immediate suspension and even expulsion from school.

The worst mistake you can make when facing Title IX sexual misconduct accusations is to not take them seriously. Even if you're convinced of your innocence, you can't rely on your school's Title IX office to come to the same conclusion without your input. You need to include your own voice in the process. The best way to make sure you protect yourself is to hire an experienced Title IX attorney to act as your advisor and advocate in the process.

Your Title IX lawyer will help you at all points of your Title IX case. Cross-examination is a delicate procedure that must be handled properly in order to be successful. You need someone with the right expertise to best handle your Title IX case. Joseph D. Lento has dedicated over two decades of his career to defending the wrongly accused. He has defended students accused of Title IX misconduct on school campuses across the United States for years.

Call the Lento Law Firm now at (888) 535-3686 to discuss your Title IX case without delay. The sooner you talk to an experienced advisor about your situation, the better.

What Is Cross-Examination?

Cross-examination is one of the cornerstones of the United States justice system, touted as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” The process of cross-examination helps determine the credibility of witnesses, especially when other evidence is not available. The right to discern the truth through cross-examination is written into the U.S. Constitution in the Confrontation Clause of the Sixth Amendment. Cross-examination is a huge part of protecting your due process rights under the law.

Under the Confrontation Clause, you have the right to confront your accuser in a court of law in order to establish the truth. In cross-examination, the lawyer asking questions is said to be acting as a truth finder. Without cross-examination, any witness could give testimony without their statements being challenged. Unfortunately, people sometimes remember events incorrectly or even lie under oath. Cross-examination allows you to question your accuser or a witness's statements in order to check them for validity and accuracy.

Usually, the opposing party's lawyers ask the questions. It helps to hire a Title IX advisor who is a lawyer because they will have had cross-examination experience in court.

Still, cross-examination in court is different than cross-examination in a campus Title IX hearing, which is why you shouldn't hire just any defense lawyer. It's important to find a lawyer who specifically has Title IX experience to represent you. A general defense lawyer who isn't familiar with campus procedures may not have the right expertise for a Title IX case. Their unfamiliarity with the unique campus justice system may actually end up hurting your defense.

The Title IX process is self-contained within the educational system and limited to your campus. You can only be punished to the extent that your school can punish you – you cannot go to jail for a Title IX violation. In fact, compared to civil or criminal court cases, a completely different set of rules applies to Title IX hearings and cross-examinations.

For students accused of sexual misconduct, that means not necessarily getting the legal protections they would get in a civil or criminal court. Even though you're not facing jail time now, your Title IX charges could lead to criminal charges and the evidence in your student file could be turned over to the police. A Title IX finding of sexual misconduct against you could end up on your permanent student file. So the real-life stakes go way beyond campus limits.

When the new Title IX rules were released in May 2020, the Department of Education stated:

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault. This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”

Requiring schools to allow cross-examination is one way the Department of Education has tried to even the field in Title IX cases. Because you face serious consequences, you should have the best shot possible of proving your innocence. Cross-examination is a part of that.

On the other hand, the Department of Education must balance the needs of your accuser as well. Revisiting a sexual misconduct incident during a live hearing cross-examination could cause more trauma for the accuser. As a result, the new Title IX rules have strict requirements about how campus cross-examinations should be conducted.

Cross-Examination Under the New Title IX Rules

Under the previous Obama-era Title IX rules, live hearings and cross-examination were allowed but not required. Instead, the DOE encouraged a single investigator model, which could disadvantage the accused. The new rules no longer allow the single investigator model and make cross-examination a required part of the Title IX process.

Under the new Title IX rules, colleges and universities must conduct live disciplinary hearings for sexual misconduct cases and permit cross-examination of witnesses. This requirement does not apply to elementary, secondary, or high schools.

The new rules state that:

  • In the interest of “fundamental fairness,” your school's Title IX Coordinator or investigator cannot be the same person who decides the outcome of your case.
  • Your school's Title IX “decision-makers” must review the investigator's report and listen to live testimony from any witnesses who are named in the report.
  • Title IX decision-makers must not base their final determinations on the testimony of witnesses who decline to be cross-examined in a live hearing.
  • Students are not allowed to question each other in a live hearing.
  • The actual cross-examination must be conducted by student advisors. Your advisor doesn't have to be a lawyer but a lawyer is highly recommended.
  • Either side can ask for the live hearing to be conducted in separate rooms, with cross-examination carried out remotely.
  • Whoever is overseeing the live hearing must screen each cross-examination question closely for relevance and civility.
  • Most questions about either student's previous sexual behavior are not allowed.
  • Hearings are recorded but remain private and confidential.
  • Anyone involved in the process must take care to abide by their state rape shield laws and honor the confidentiality of students' education and health records.

United States courts have ruled that cross-examination is constitutionally required. Although the rules are slightly different in on-campus Title IX proceedings, the chance to cross-examine your accuser and witnesses is crucial to proving your side of the story. Your best option is to speak with an experienced Title IX attorney about your defense strategy as soon as possible.

Joseph Lento has dedicated his career to fighting for the rights of the wrongly accused. He's handled Title IX defense cases across the country and cross-examined countless witnesses in delicate, high stakes trials. He helped his clients successfully navigate the previous major changes to Title IX. You can trust his long-established expertise to help you get through this new shifting Title IX landscape with the best chance to continue your education.

What to Expect From a Live Hearing Cross-Examination

If you've been accused of sexual misconduct under Title IX, it's natural to fear what that means for your education and future. Title IX cases are serious and sexual misconduct incidents are not taken lightly by schools or future employers. If you're found responsible for sexual misconduct under Title IX, you could be suspended or expelled from school. Your Title IX violation could become a part of your permanent student record.

You might not like the idea of a live hearing, but the chance to question your accuser and witnesses is actually vital to your defense. Live hearings are important because the process allows both sides to see the same evidence and testimony as the decision-maker. In addition, both parties can challenge and refute that evidence in real-time to the best of their ability.

Live hearings are especially critical to finding the truth when cases depend primarily on witness testimony. However, it's unlikely that live hearings will look the same as courtroom hearings. So what can you expect from your live Title IX hearing?

Besides the guidelines mentioned above, the Department of Education did not release any other rules about how live hearings and cross-examinations should be conducted on campuses across the country. As a result, your own experience with the live hearing process will depend mostly on how your specific school's policies handle Title IX cases.

Keep in mind that the DOE's new Title IX rules are just a starting point. The regulations leave out many details for schools to interpret on their own. Schools may choose to enforce only the minimum or they may go the extra mile with additional policies against sexual misconduct. Your particular school's Title IX policies will depend a lot on the Title IX culture on campus.

  • How has your school handled Title IX cases in the past?
  • Has your school ever received negative media attention for not handling Title IX cases properly or being too lenient on sexual misconduct?
  • Has your school ever been the subject of a Title IX complaint or investigation by the Office for Civil Rights (OCR)?
  • Are there any groups on campus advocating for tougher Title IX rules?
  • What is the discourse around sexual misconduct on campus?

If your school's administration has come under fire for failing to properly investigate or punish sexual misconduct on campus, they may push for stricter enforcement of Title IX rules moving forward. If your school already provides extra Title IX protections for your accuser, they're likely to keep those policies in place as long as they don't go against the new rules.

You can check your school's student handbook to get an idea of what to expect in your Title IX case. The best thing you can do in your situation is to find an experienced Title IX advisor to help you navigate your specific school's Title IX process.

The right Title IX attorney-advisor can help:

  • Inform you what you can expect from your specific school's policies
  • Take over communications between you and your school's Title IX office
  • Streamline your version of events for the most relevant information
  • Track down witnesses whose testimonies strengthen your defense
  • Coach you through any testimony you might have to give
  • Come up with appropriate, relevant questions to ask your accuser and any witnesses
  • Anticipate the question you may be asked and help you answer them
  • Pose questions and ask any follow-up questions at your hearing
  • Cross-examine your accuser at your live Title IX hearing
  • Object to any inflammatory questions asked of you
  • Support you through the process with knowledge and expertise
  • Make sure you get your due process rights throughout the Title IX process
  • Appeal findings of responsibility or sanctions made against you

Joseph D. Lento has defended students wrongly accused of sexual misconduct under Title IX for years. Over the course of his seasoned practice, he's established long-term relationships with Title IX offices in schools across the United States. This expertise allows him to anticipate better what your specific school's Title IX processes may demand. Having an advisor with an established rapport and familiarity with your school is invaluable to your case.

New Title IX Standards of Proof

One other major change goes hand-in-hand with the new Title IX requirements for live hearings and cross-examinations. The DOE recently changed its recommendation for the standard of proof in Title IX cases from a preponderance of the evidence standard to the clear and convincing standard. The clear and convincing standard raises the level of proof that your accuser needs in order to find you responsible for sexual misconduct.

  • Under the preponderance of the evidence standard of proof, your accuser must show that sexual misconduct was “more likely than not” to have occurred. In other words, they must convince the decision-maker of more than a 50% chance you are responsible. This is the lowest standard of proof and the easiest one to meet.

  • Under the clear and convincing evidence standard of proof, your accuser must show that it's “highly probable or probably certain” sexual misconduct occurred. This is a higher standard that is harder to meet. The proof must be “substantially more probable to be true than not,” and significantly higher than 50% certainty.

Changing the standard of evidence from a preponderance to a clear and convincing standard is good news for the accused because it makes it harder to find you responsible.

However, this change in the standard of proof is simply recommended by the new DOE rules – it is voluntary and not required. As a result, some schools may choose to keep the preponderance of the evidence standard as they had before, especially if their local campus culture pushes for stricter Title IX enforcement. If this is the case at your school, you must be prepared with a strong defense. Cross-examination can play a major role in defending your case, especially when the accusations against you depend heavily on witness testimony.

Even if your school switches to a clear and convincing standard of proof, that doesn't mean you're in the clear. You still cannot take your innocence for granted. You cannot simply wait for the Title IX process to naturally absolve you of responsibility. You must be proactive.

Being proactive means hiring the best Title IX advisor to defend your case as soon as possible. Because live hearings and cross-examination are going to be such a critical part of your Title IX proceedings, having an attorney as a Title IX advisor is extremely advantageous. 

Hiring a Title IX Attorney for Your Defense

The new Title IX rules released in 2020 address many issues brought up by due process advocates. Over the years, many student advocates expressed concern about the effects of the Title IX process on students accused of sexual misconduct – students assumed guilty from the beginning, students who didn't get a proper chance to defend themselves, students whose entire lives became derailed within the span of just weeks.

Although the new Title IX rules level the playing field a little more, that doesn't mean you can simply relax and trust that the process will uncover the truth. You must take every chance to establish your innocence or your education and career could suffer.

When facing a Title IX accusation of sexual misconduct, many students prefer to ignore it, act like it doesn't exist, or even hide it from their family. But all of those would be major mistakes. You need the most support you can get right now, and that includes your family. Because the Title IX process usually moves so quickly, any delay can hurt your chances of proving your innocence. Once that chance is gone, you may never get another good opportunity.

At the Lento Law Firm, we know what you're going through. Joseph D. Lento has helped hundreds of students across the country get their lives back on track after a Title IX accusation. The truth is, there's so much at stake that you cannot afford to leave your Title IX case in the hands of anyone with less experience.

Title IX violations can result in severe sanctions and punishments against the accused.  Because sexual misconduct is such a serious issue, schools respond in serious ways. Immediate suspension and expulsion are regularly recommended for students who are found responsible for sexual misconduct under Title IX. You could be required to leave campus in the middle or near the end of a semester. If you end up having to leave school because of a finding of responsibility, you could lose any money you've paid for tuition up until that point.

What's worse – once you are found responsible for sexual misconduct under Title IX, it's much more difficult to appeal your case. That's why Title IX cases are best handled by an expert as soon as possible. The moment you find out you are the subject of a Title IX sexual misconduct investigation is the moment you should call a Title IX lawyer for help.

Call attorney Joseph D. Lento and the Lento Law Firm today at (888) 535-3686 to discuss your best defense options with an experienced Title IX attorney as your advisor.

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