Unable to Cross-Examine (Witnesses, Accuser, or Accused)

All academic institutions in the U.S. are responsible for maintaining compliance with Title IX guidelines that seek to prevent sexually-based discrimination, such as on college campuses. This Educational Amendment was first implemented in 1972 by the U.S. Department of Education and current responsibility for guidance and compliance is assigned to The Office for Civil Rights (OCR). Acts of discrimination can occur in institutional admissions, accessing benefits, athletic participation, employment, and more. A failure to comply with these provisions can result in a loss of eligibility for federal education funds.

Violations of Title IX may occur in many different ways. Sexual harassment may involve verbal or nonverbal acts such as appeals for sexual favors or other unwelcome advances. Acts of sexually-based violence are physical actions committed against a victim that has not provided consent to participate, such as sexual assault or coercion. Forms of gender-oriented harassment may occur through inappropriate slurs or false stereotypes.

Understanding Institutional Procedure Under Title IX

While the OCR has been providing continual guidance for schools to comply with Title IX, many of the specific procedural provisions have traditionally been ambiguous. The main emphasis from the federal level had been to maintain fairness and prevent any conflicts of interest. Each school's designated Title IX Coordinator has been given some latitude in developing processes and procedures regarding the reporting options, investigative process, assigning those who will make rulings, etc. Sweeping regulatory changes were released that includes having witness testimony subject to cross-examination.

New Requirement for Cross-Examination

The Department of Education released a 2300-page explanation of new guidelines that all Title IX investigations must culminate with a live hearing with the accuser (complainant) and the party that is accused (respondent) present. Each party will be accompanied by an adviser that will be responsible for cross-examining any witnesses that present evidence. This must be completed verbally and in real-time. The scope of questioning is subject to limitations based on a relevance that is controlled by the hearing officials.

An adviser is generally not permitted to question a complainant regarding his or her prior sexual activity. An exception may apply when the questioning is deemed as necessary to suggest a mistaken identity, which involves proving that someone other than the respondent had committed a sexual assault or similar act. Any potential testimony from a witness that is unwilling to submit to cross-examination will be excluded from the evidence used in reaching a decision.

Opposition to Introducing Cross-Examination

Many of those who advocate for the rights and protections of victims of sexual misconduct have long been opposed to requiring that a complainant be subject to direct and/or cross-examination. In some cases where an individual is a victim of an alleged sexual assault, they may have experienced significant trauma and subsequently dealt with psychological and emotional difficulties. Many individuals feel that requiring a victim or survivor to provide their account of the event may subject them to unnecessary further trauma as they “relive” the details. Others have more generally been opposed to cross-examination based on the potentially adversarial or antagonistic nature of the process.

Victim Testimony as Evidence and the Rights of Those Accused

Many who oppose having alleged victims provide testimony and being subjected to cross-examination have concerns that victims will be discouraged from initially reporting incidents of sexual assault or harassment. The OCR acknowledged the basis for such fears; however, they have also expressed concerns regarding the respondent's rights to due process in defending against allegations. These conflicting views create a point of contention among those seeking to advocate for the protection of survivors and those who insist that such measures are necessary for properly assessing allegations.

Due-Process in Title IX Disciplinary Proceedings

What constitutes an equitable process for responding to allegations of sexual misconduct in a college or university environment? Opinions range along a wide spectrum, as made apparent by a recent federal forum that received more than 124,000 public comments. To address these concerns, we look to some of the Department of Education's explanation of their intentions as follows:

  • The new regulations are designed to hold “schools accountable” for promptly and fairly responding to incidents of alleged misconduct by establishing a “reliable adjudication process” that was created with significant consideration for the opinions of the public regarding the rule-making process
  • The Department describes their regulations as based on many years of analysis and debate with feedback from “survivors, advocates, falsely accused students” and Title IX Coordinators and other institutional administrators that have been involved in these actions
  • Secretary Betsy DeVos explained that the new guidelines are intended to support and assist victims of sexual misconduct while establishing more thorough “safeguards” that make the process fair and more transparent
  • DeVos further explained that by “codifying” measures for handling cases, the due process rights are clear and will be less likely to rely on rulings from courts

Why Retain Experienced Advisory Counsel?

Students at colleges and universities that are the subject of allegations for violating Title IX guidelines are strongly encouraged to speak with a knowledgeable attorney that is familiar with this area of practice. This contact should be made as soon as possible, and preferably prior to being informed of the allegations, as federal guidelines encourage schools to promptly respond and investigate complaints. This will help to maximize the time available for thorough preparation, such as being ready to deliver concise statements and to confidently respond to questioning.

The Title IX regulations have been shifting rapidly with modifications to provisions; therefore, having an attorney that remains abreast of these changes is critical in these volatile times. Your attorney may also potentially engage in discussions with the administrators toward negotiating a mutually acceptable resolution to the matter.

Lawyer Represents Respondents in Title IX Matters

If you are determined to have committed acts of sexual harassment, dating violence, or other forms of misconduct that violate Title IX provisions, you may be suspended or dismissed from the school. Joseph D. Lento is an attorney who has provided effective advisory representation in these matters for many years. Contact the office at (888) 535-3686 for more information.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact our offices today, and let us help secure your academic career.

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