In a major victory for students accused -- often falsely -- of campus sexual assault, a three-judge federal appeals court panel ruled unanimously on September 26 that the University of Cincinnati had violated a student's due process rights by finding him guilty of "responsible" for sexually assaulting another student without giving him any chance to cross-examine his accuser.
The U.S. Court of Appeals for the 6th Circuit held that in "he said/she said" cases turning on the credibility of the two parties, a university’s “failure to provide any form of confrontation of the accuser made the proceeding . . . fundamentally unfair.”
This was an implicit rebuke to Obama Administration's policy of virtually forbidding meaningful cross-examination of accusers in campus sex proceedings. It also makes it more likely that Education Secretary Betsy DeVos will not merely permit colleges to allow cross-examination, but also require them to do so when credibility is an issue.
The accuser, Jane Roe, said that she did not consent before having sex with John Doe (both are pseudonyms) in his apartment. Doe said she had consented. There was no physical evidence. And Roe did not even show up for the "hearing" at which the university branded Doe a sexual assaulter.
Based solely on Roe's previous hearsay statements to investigators, the school suspended Doe for two years, a penalty reduced to one year after an administrative appeal.
"Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair," the 6th Circuit panel held.
It added, in a powerful paean to the value of cross-examination: "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.' … Cross-examination takes aim at credibility like no other procedural device. A cross-examiner may 'delve into the witness' story to test the witness’ perceptions and memory.' He may 'expose testimonial infirmities such as forgetfulness, confusion, or evasion … thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.' He may 'reveal possible biases, prejudices, or ulterior motives' that color the witness’s testimony." [citations omitted]
The court acknowledged that direct cross-examination might be emotionally difficult for many accusers, and said that campus hearings need not allow the accused "to physically confront his accuser" or permit the same sort of direct cross-examination by his lawyer that is routine in courtrooms.
But it concluded that it was vital to fairness and accuracy for the campus panel to "assess the demeanor of both the accused and his accuser."
The opinion was written by Judge Richard Griffin, a George W. Bush appointee who sits in Cincinnati, and joined by Judges Amul Thapar, a Trump appointee, and Eric Clay, a Clinton appointee.
Stuart Taylor Jr. and KC Johnson coauthored The Campus Rape Frenzy: The Attack on Due Process at America's Universities (Encounter Books)