Doe v. University of Cincinnati is a federal college student sexual misconduct case. It deals with the policies for hearings set by the university when a student is accused of sexual misconduct.
What Happened in the Case
In this case, an Jane Roe accused John Doe of sexual assault after the two students had sex. (Both students go by pseudonyms in the case for privacy reasons). The case boiled down to a he-said she-said. Jane Roe said the sex was not consensual. John Doe claimed the sex was consensual. There was no other evidence supporting either side.
After a long delay, the University held a student disciplinary proceeding. Roe did not attend. Nevertheless, the University found Doe responsible of misconduct based on Roe’s previous hearsay statements.
As punishment, the University suspended Doe for two years. The punishment was later reduced to one year after an appeal.
Doe filed suit against the University in the federal district court. He argued the denial of ability to confront his accuser violated his Due Process rights to a fair hearing. The district court issued a preliminary injunction against the suspension. The order was appealed to the circuit court.
The University of Cincinnati’s Student Sexual Misconduct Policy
The federal Title IX law enables colleges to create policies and procedures for investigating and adjudicating claims of sexual harassment and misconduct. This means each college is free to create their own policy under the guidelines of the law.
The University of Cincinnati has what they call an Administrative Review Committee hearing process. The process starts when a student files a complaint. The University then informs the accused about the allegations. The University’s Title IX offices investigates, interviewing both parties and gathering evidence. The parties then go to a hearing before a panel composed of faculty and students.
The accused student may present their side of the story and present evidence. The accused may also submit written cross-examination questions to a third party who determines if the questions are relevant and if they will be posed to the accuser.
At issue in this case is the University policy regarding the accuser’s attendance at the hearing. There is no policy requiring the accuser to attend in-person. A witness who is unable to attend may submit a written notarized statement.
Again, at the hearing, Roe did not appear. The committee read a copy of the Title IX report. The report contained statements of several witnesses that provided spoke about Roe’s version of events.These witnesses, like Roe, were not at the hearing. When asked how he would like to proceed after hearing this, Doe noted, “Well, since she’s not here, I can’t really ask anything of the report.”
Doe was then asked if he would like to summarize his version of events. Doe explained his side, and then challenged a number of Roe’s statements. A written statement by Roe as a closing argument was then read, and Doe gave his own statement as a closing argument. Roe’s written statement was not notarized as required by the University’s policy.
On Appeal – Cross Examinations in Student Misconduct Hearings
Doe’s appeal to federal court focused on his lack of ability to cross-examine his accuser at the hearing. Cross examination is a party to a lawsuit asks questions of the other party’s witness. He argued this lost ability violated his Due Process rights, although he was given this right in theory, Roe simply did not attend the hearing and give an opportunity for cross examination.
Cross examination is an important part of the trial process. In many ways, cross examination is the only method to test a witness’s credibility, reliability, or bias. Think about it like this. When a party puts a witness on the stand, the party is going to ask easy, softball questions for the witness to answer. The party will of course stay away from topics that could make the witness look bad in front of a judge or jury. Cross examination can focus on these areas that were not provided.
In this case, the only evidence against Doe was Roe’s statements. These statements were hearsay as well. There was no physical evidence supporting her claim. This is a situation most people refer to as he-said she-said, in that the only evidence is her word against his. Where this is the case, credibility is the most important element. That’s because a he-said she-said is a pure credibility contest, in that the winner of the dispute is the person who the fact-finder believes is the most credible.
Due Process Rights
There is ample case law supporting a defendant’s right to cross-examination in a criminal trial (which is an analogous situation in many ways to the college student sexual misconduct case). The United States Supreme Court has stated, “Few procedures safeguard accuracy better than adversarial questioning. In the case of competing narratives, ‘cross-examination has always been considered a most effective way to ascertain truth.’” In other places, cross examination has been referred to as the greatest legal engine ever invented for the discovery for truth.
On appeal, the University claimed that Roe’s non-attendance did not impact the fairness of the hearing. The University pointed out that Doe was still able to point out inconsistencies in her statements. The Court did not agree with this claim.
The Court pointed out that cross examination benefits the trier of fact (the committee here), not just the defendant. Cross examination will help the committee understand the situation better and better assess the accuser’s credibility.
The Court’s Decision
The Court found the University violated Doe’s rights when it denied him the opportunity to cross examine Roe. The Court repeated a line from an older case in that, “the value of cross-examination to the discovery of truth cannot be overstated.”
However, the Court noted that cross examination through a third-party was appropriate in these situations (which Doe did not disagree with, a policy articulated in a prior Court opinion.)
Importantly, the Court wished to narrow the holding by saying that cross examination is not crucial in all student misconduct hearings. Cross examination is especially crucial where the case is truly a he-said she-said credibility contest. But there are times when cross examination is not necessary the finder of fact, such as in cases where a person admits guilt. Also, the Court noted that nothing in its opinion limited the University’s ability to rely on hearsay evidence in making decisions.
The Court emphasized it’s ruling to be that the University must provide a means for the Administrative Review Committee panel to evaluate an alleged victim’s credibility, not for the accused to physically confront the accuser. The Court noted that an accuser could appear via skype, for example.
Takeaways from the Case
This case affirms the idea universities must provide some method for the accused to test the credibility of the accuser, although not necessarily in-person. However, cross-examination would seem to be the most appropriate method to make this happen.
This idea would be repeated in 2018 when a federal judge in Detroit ordered the University of Michigan to provide a live hearing for a student in a Title IX sexual misconduct case. The University of Michigan in 2018 had a Title IX policy in which students were not even entitled a hearing where there was the potential for cross examination. At least the University of Cincinnati had a procedure in which cross examination was possible (as long as people showed up for the hearing).
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Sam Bernstein is an Ann Arbor attorney focusing on criminal defense.
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A university misconduct case is not something to take likely. Possible consequences include expulsion, suspension, and other academic sanctions. Speak with an attorney to advocate for you. Criminal defense attorneys are well-suited for these matters because we represent people charged with all manners of sex crimes and assault cases.