Better Cross, But Hardly The Cure

The Sixth Circuit’s decision in Doe v. Baum will be hailed as a watershed decision for the accused in Title IX proceedings, and with some reason.

Earlier this month, a three-judge panel at the court handed a major victory to those who have claimed U-M’s process has been slanted toward the accuser in these investigations. The court said U-M violated the due process rights of a student by not offering him the opportunity for direct questioning of the person accusing him of sexual assault. The ruling was seen, by both victim-rights groups and those advocating for those accused, as a landmark decision.

U-M said in a court filing last week that mandating that universities allow direct cross-examination in a live hearing could lead to all sorts of problems.

The ruling raises a host of issues, from the mandate that a live hearing be provided, to the accuser being physically present and compelled to present her own testimony rather than the conclusory testimony as provided by a third-party investigator on her behalf, to the accused being provided the opportunity to confront his accuser and cross-examine her. 

The University of Michigan is right, this could lead to all sorts of problems. The reason is fairly obvious: colleges are not now, nor have they ever been, equipped to adjudicate accusations of heinous criminal conduct. That it’s not a criminal proceeding, nor does any accused go to prison based upon a campus adjudication (provided there isn’t a parallel criminal prosecution), hardly addresses the exceptionally severe consequences or the taint that follows and destroys lives.

“Requiring universities to allow cross- examination by counsel will convert disciplinary proceedings into full-scale adversarial hearings, with the university forced to preside,” U-M wrote in the filing. “Moreover, the panel opinion introduces new opportunities for unfairness, with economically advantaged parties likely represented by counsel, and others essentially appearing pro se or with only nonlawyer family members or support persons.”

The argument begs the question, by claiming the school is “forced to preside.” This is false. Colleges choose to sex police their students, upon threat of loss of federal funding, based upon a false assumption that Title IX mandates them to elevate every allegation into a potential violation. It doesn’t. It never has. They do so because they choose to do so. To claim they’re forced to do so is a lie.

The second argument, an appeal to social justice based upon the accurate fact that “economically disadvantaged” students will lack the ability to retain counsel is the only easy fix in the bunch. If colleges want to prosecute them within their adjudicatory system, they can provide or fund counsel for anyone unable to afford his own. Regardless, that some accused might be denied due process isn’t a reason to deny due process to everyone. The solution to fairness isn’t to deprive it equally, but to provide it.

Fortuitously, we’ve just gone through the experience of observing a person try to “cross” a person alleging a sexual assault in a forum that failed miserably to serve its function. And consequently, we’ve seen the fallout, the two sides of useful idiots proclaiming the win.

While the format under which Rachel Mitchell worked was exceptionally untenable to examine a witness, the fact remains that even a lawyer can struggle with appropriate questions, tone, follow-up and tactics. Cross isn’t easy, and one would be hard-pressed to imagine a college sophomore whose life is on the line being capable of doing it effectively.

As problematic as a “real” trial may be, the alternatives are invariably worse. A Senate hearing can’t pull it off, and a college disciplinary board is even less capable of managing a fair process for the adjudication of so serious an accusation.

Tweaking around the edges, by requiring a live hearing, requiring examination of competent witnesses (meaning non-hearsay accounts from investigators) merely scratches the surface. There are still no rules of evidence, no competent judge to grasp what’s material and relevant from what fits the narrative. Even the arguments about burden of proof, preponderance or clear and convincing, is too amorphous for a French lit prof to apply.

Adding lawyers to the mix certainly turns the proceeding into more of a “full-blown adversarial proceeding,” but still falls far short of a proceeding competent to reach a valid decision upon which to inflict such severe punishment on an accused. Even the best cross by the best lawyer will only serve as well as the adjudicator’s grasp permits.

While this decision is certainly better than the alternative, an inquisition by a trained-to-be-biased investigator, and takes a monumental step forward toward due process, the reality is that there are no answers that will assure the fairness of the proceeding and the legitimacy of the outcome to be found on a college campus.

There is an answer, and it’s one that has been apparent from the start but denied by the litany of excuses wrapped up in the narrative: we build courthouses to try cases, with real rules, real evidence and real judges applying real law. That some accusers prefer not to go that route doesn’t change the fact that there is no viable alternative.

There is no “half-pregnant” way to try a case, to find and adjudicate facts and impose the harsh punishment that goes with it. As much as qualms exist in the fairness of real trials, they are dwarfed by the failings of campus trials. If punishment is to be imposed, and it is, then we need to stop denying the obvious, trying to build a campus Rube-Goldberg machine to provide exceptionally poor process when we have a mechanism established that society has determined provides a somewhat better way.

Much as the Sixth Circuit’s shift improves a terrible mechanism for destroying lives, it still falls short (as it invariably will) of due process by allowing colleges to do what they will never be capable of doing. We have courts. Use them.

22 thoughts on “Better Cross, But Hardly The Cure

  1. Skink

    “Providing Doe a hearing with the opportunity for cross-examination would have cost the university very little. As it turns out, the university already provides for a hearing with cross-examination in all misconduct cases other than those involving sexual assault. So the administration already has all the resources it needs to facilitate cross-examination and knows how to oversee the process.”

    The process might do a reasonable job at addressing cheating, but it has no chance at even minor testimonial challenges. You’d think there’s someone at that fabulous law school that gets how due process works when a government, like UM, wants to deprive someone of something. It’s like the first day of civil procedure class: the more that’s at stake, the more process is required.

    I’m probably a ways behind the Title IX curve, but it doesn’t make sense that public universities, as governments, willingly make themselves the adjudicator and take on the impossible work of creating an apparatus satisfying due process. Why not let Ann Arbor P.D. investigate and the state decide prosecution? What’s in it for UM?

    1. SHG Post author

      The narrative is that women will feel uncomfortable and not report if required to go the official route, and they should have some middle ground that allows them to accuse, and for their accused to be punished, without having to go through the rigors of the official system. It’s a great narrative, but for one huge, glaring hole.

      1. B. McLeod

        A number of advocates for The Terror have openly declared that the regular criminal system and “reasonable doubt” standard of proof are defective in that they fail to secure conviction and punishment of all “rapists” (meaning, every accused). The core purpose of their alternative Title IX star chambers was to create a Kafkaesque proceeding where no accused person can escape punishment.

        1. Ross

          I’ve seen a number of pundits suggest that sex crimes are so heinous that the presumption of innocence shouldn’t apply. That scares the hell out of me, as it should anyone who believes in civil liberties and the rule of law. I have to wonder if the pundits have given any thought to the potential unintended consequences, or do they just blithely go through life assuming nothing bad will happen.

          1. B. McLeod

            They assume it won’t happen to them or anybody they care about. It is an unwise assumption.

          2. DaveL

            Do you know what’s more heinous than sex crimes? Witchcraft. Has anybody ever told you that your doubts manifestly savour of heresy? #MalleusToo

  2. bl1y

    I’m of a mixed mind on this. Universities are shite at holding these sorts of investigations and hearings, but I don’t think we can just punt the issue to the courts either.

    If you’ll indulge a seeming non-sequitur, let’s say I have a student I suspect of plagiarizing. It would be absurd to say “copyright infringement is a matter for civil courts with all their procedural rules and yadda yadda, the university shouldn’t get involved.” Just doesn’t make any sense. Plagiarism is an animal totally different from copyright infringement, and a civil court will use a preponderance standard while what I’m interested in is clear and convincing evidence. Even a verdict in favor of the copyright holder tells me nothing about whether the student plagiarized. The court simply isn’t answering that question. It’s using a different standard to evaluate a different claim.

    With sexual assault, I think we see something similar. A criminal investigation and trial answers one specific question, is there evidence beyond a reasonable doubt that the accused committed the offense as defined in the criminal code? But, what if what the school wants to know is if there’s clear and convincing evidence that the accused violated not the sex assault law, but the student conduct code? A guilty verdict at criminal trial likely tells the school the student violated the code, but a not-guilty verdict leaves them in a fog. What if the jury was just 85% certain? I’d think that’s enough to kick the student off campus–but juries don’t tell us that (as far as I know). What if the act violated the code but not the law (perhaps the school has a more broad definition of “intoxicated” or “incapacitated”)? The jury isn’t running a student conduct code hearing in parallel to the criminal trial.

    Having university administrators play at law is a terrible option, but so is letting students who we’re only 85% sure assaulted another student stay on campus.

    1. SHG Post author

      An interesting hypo, but it’s not only facially contrary to reality but contrary to the subsequent additional burdens being imposed on students held responsible. There is no acceptable “rapist lite” version, as you would imagine it, and so we’re constrained to deal with reality rather than fantasy.

    2. David

      Copyright and plagiarism sometimes overlap, but they’re different things.

      To oversimplify, if someone hires a ghost writer to write all their papers but claims credit for them, they may have committed plagiarism but not copyright infringement. Alternatively, if someone copies large sections of material subject not in the public domain but correctly cites the source, they may not have committed plagiarism because they’ve cited sources, even if they infringed copyright.

      1. bl1y

        David,

        Yeah, that was my point. They’re different things, which is why courts handle copyright and universities handle plagiarism.

        What I’m responding to is the common idea of “we have courts to handle sexual assault cases.” True. The courts answer whether a defendant has violated a criminal statute. They do not answer whether a defendant has violated a university code of conduct. Both the criminal law and the university code of conduct may call the violation “sexual assault,” but they typically define the offenses differently. And on top of that, they are aiming for a different burden of proof.

        So to echo your comment: Violating the criminal law against sexual assault and violating the student conduct code against sexual assault sometimes overlap, but they’re different things.

        1. David

          I might have sympathy for your viewpoint if universities didn’t treat these proceedings so differently from other alleged violations of the code of student conduct, both in process, and consequences.

  3. DaveL

    what if what the school wants to know is if there’s clear and convincing evidence that the accused violated not the sex assault law, but the student conduct code

    What specific sexual conduct is prohibited by student conduct codes, but not by state law? Apart from places like Bob Jones, I mean.

    1. Dan

      Anything lacking “affirmative consent”, for one. Affirmative consent isn’t the law (in most places), but it is in many schools’ conduct codes.

      1. DaveL

        Which brings me to my point – to the extent these codes cover any conduct (Bob Jones and the “Chaperone Rule” aside) that the laws do not, they tend not to be well-defined in a way that lends itself to fair adjudication. For instance, our host has previously written about the slipperiness of the “Affirmative Consent” standard. Student Conduct manuals tend to be written by the same people who write Mission Statements, no criminal statutes, and it shows.

        1. SHG Post author

          See that part in there about how I’ve written about it before? It’s not what this post is about. Much as I’ve had enough of bl1y’s fantasy lawless version, this isn’t the post to revisit a complex off-topic issue.

    2. bl1y

      Well, if you’re at Antioch College, having sex without *verbal* consent is a violation of the code. The Ohio criminal code differs significantly. Likewise, and I forget if the bill passed, but the California legislature proposed requiring *affirmative* consent when looking at allegations on college campuses, but did not put the same requirement into the general criminal law.

      1. SHG Post author

        We’re now getting dangerously close to the making people stupider point. These issue have been discussed at great length here, and revisiting them from the idiot’s perspective doesn’t help.

        1. Sgt. Schultz

          You’re being overly nice again. Are you going soft or is this another idiot child of yours?

          1. SHG Post author

            An old friend who hasn’t been around in a while, so he’s not up to date. He doesn’t mean to be a blithering idiot, but he just doesn’t realize what’s going on so he gets a break.

    3. LocoYokel

      The ‘Must see daylight between people when dancing rule”, the “No tongues when kissing rule”, and the “Chaperone rule” all come to mind.
      However, I believe leash laws are local ordinances not state.

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