09-20-2018
The Sixth Circuit Court of Appeals has held that a male student accused of sexual assault has the right to cross-examine when credibility is an issue in the case.
John Doe and Jane Roe, students at the University of Michigan, met at his fraternity party and ended up having sex in his room. Two days later, Roe filed a sexual misconduct complaint against Doe, asserting that she had been too drunk to consent. Having intercourse with an incapacitated person violates school policy. The administration investigated. Over the next three months, Roe, Doe and 23 other witnesses were interviewed.
According to Doe, he asked if she wanted to have sex and she responded affirmatively. She threw up afterward. She was also crying and upset. According to Roe, she told him “no sex” and was in a “hazy state of blackout” the entire time she was in his room. The male witnesses mostly corroborated Doe’s story and the female witnesses mostly corroborated Roe’s version of events. Given the conflicting stories, the investigator could not reach a clear conclusion on her level of incapacitation and thus could not make a finding of sexual misconduct. Roe appealed. The Appeals Board reviewed only the evidence already gathered by the investigator and reversed, finding that Roe’s story and witnesses were more persuasive.
Doe filed a lawsuit after agreeing to withdraw from the school. He argued that because the school’s decision was based on credibility, he was entitled under Title IX and the Due Process Clause to an opportunity to cross-examine Roe and her witnesses. With regard to due process, the Court held “if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.” Moreover, because the university did not provide a chance for cross-examination even though there was an issue of credibility, and there was some evidence of bias in reversing the investigator’s findings, Doe had enough facts to show an erroneous outcome of the Title IX claim by the University. This decision leaves unanswered what type of proceeding would satisfy the rights of Doe while also addressing concerns about trauma to the claimant.