When a student is facing a possible university expulsion for an allegation of rape or sexual assault, that is pretty serious, and a student is entitled to certain procedural rights. I wrote about a decision last year by a Washington court that held that a student was entitled to have an attorney speak on his or her behalf and to assist in asking questions of witnesses. Since then, some universities, such as Washington State University, have avoided having the accuser submit to cross-examination by not having her participate in the preceding at all. That practice was called into doubt this week but a decision from the 6th Circuit entitled Doe v. Baum. The court ruled that a college student in a Title IX hearing is entitled to a live cross-examination of his or her accuser, at least when the determination by the school comes down to a credibility judgment. The court ruled:

Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. Nor can the fact-finder observe the witness’s demeanor under that questioning.  For that reason, written statements cannot substitute for cross-examination.

This court decision effectively ends the practice of many schools to have the single investigator model, i.e. where an investigator determines credibility with separate interviews of both sides. The new court decision will essentially compel the participation of the accuser in the hearing, which is something schools such as WSU have not done to date. In fact, Washington State University enacted a regulation in the last couple of years which purports to prohibit subpoenaing the accuser or complainant.

For questions about Title IX cases, please reach out to our office.

One Response to “Title IX Hearings in Washington State – The Right of Cross-Examination”