Is There a Right to Cross-examine in Campus Sexual-Assault Hearings?

When Brian Harris was found responsible for sexual assault and expelled from St. Joseph's University, he filed a complaint against the school, claiming he was denied an opportunity to "question and confront his accuser and witnesses to test their veracity and credibility" in violation of provisions in the student handbook and "basic due process" (Complaint, ¶¶ 55 and 82(k)).

Harris and other male college students accused of sexual assault have filed lawsuits, alleging that campus investigations and hearings are unfair and biased in favor of their accusers, depriving them of their right to due process.

As we discussed in our post on the standard of proof in disciplinary proceedings, many of these cases center on the credibility of the two parties. The specific question we'll look at in this post is whether in a conduct hearing a student accused of sexual assault has a right to "question and confront his accuser" under the Sixth Amendment to the U.S. Constitution, which reads:

In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …

The U.S. Department of Education has been clear that in campus sexual assault hearings allowing the accused to directly confront the accuser could cause more harm to the victim. ED's 2001 Sexual Harassment Guidance says "schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant." In its April 2011 Dear Colleague Letter, the ED is more specific:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.

While the ED enforces Title IX compliance in responding to sexual assault complaints, it does not have the last word on the constitutional right to cross-examine witnesses in disciplinary proceedings where the accused faces expulsion. Federal courts have reviewed cases involving due process rights in student conduct proceedings and stopped short of requiring the right to cross-examine witnesses when a student faces expulsion, though the issue has not been finally decided.

Before his appointment as a U.S. Supreme Court Justice, Thurgood Marshall represented Alabama State College students who claimed a denial of due process because they were expelled for misconduct without a notice or hearing. The U.S. Court of Appeals for the Fifth Circuit agreed that due process required the school to give the students notice of and a hearing on the charges before they could be expelled. However, the court said the nature of the required hearing varied, depending on the circumstances. [Dixon v. Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, cert. denied, 368 U.S. 930 (1961)]

While the Dixon court concluded that a student misconduct hearing (such as one on sexual assault) would require more than a hearing on a failure to meet academic standards, it explained that "more" did not include the right to cross-examination:

By its nature, a charge of misconduct ... depends upon a collection of the facts ... [and] an opportunity to hear both sides in considerable detail ... This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses is required.

Citing the Dixon case with approval, the U.S. Supreme Court reviewed a case involving a 10-day suspension from high school and found the students were entitled to "some kind of notice and ... some kind of hearing," but the Court also acknowledged, without elaborating, that "[l]onger suspensions or expulsions ... may require more formal procedures." [Goss v. Lopez (1975) 419 U.S. 565, 579 and 584]

The U.S. Court of Appeals for the Second Circuit also cited the Dixon case when it acknowledged "[t]he right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings." [Winnick v. Manning (2nd Cir. 1972) 460 F.2d 545] Since Glen Winnick admitted that he participated in disruptive behavior in a classroom of students taking a final exam, the court said cross-examination of witnesses would not have changed the outcome and have "been a fruitless exercise." However, the Winnick court left open the possibility that "if a case of a substantial suspension of a state university student has resolved itself into a problem of credibility, 'cross-examination of witnesses might [be] essential to a fair hearing.'"

Following its Winnick decision, the Second Circuit again did "not find it necessary to decide the point" of whether students were entitled to cross-examine witnesses in a conduct hearing involving unauthorized use of a residence hall for a "sleep in." [Blanton v. State University of New York (2nd Cir. 1973) 489 F.2d 377] Again, the court left open the possibility that in student misconduct hearings where the central issue is whether to believe the accused or the accuser the right to cross-examine witnesses may be required.

In a case decided by the Eleventh Circuit Court of Appeals, two veterinary students who were accused of academic dishonesty sued their university for violating due process. They were not allowed to directly cross-examine adverse witnesses but were allowed to ask questions through the hearing officer. The court found, while due process required the university to allow the students to respond to the charges, due process didn't require cross-examination of witnesses since student "rights in the academic disciplinary process are not co-extensive with the rights of litigants in a civil trial or with those of defendants in a criminal trial." Therefore, the court concluded that there was no denial of due process. [Nash v. Auburn University (11th Cir. 1987) 812 F.2d 655, 664]

Finally, a U.S. District Court in New York found that a "higher level of formality to ensure fairness" was required to satisfy constitutional due process in a case where a male student accused of rape faced a two-year expulsion. The court described this "higher level" as:

At the very least, in light of the disputed nature of the facts and the importance of witness credibility in this case, due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel.

Absent a decision from the U.S. Supreme Court on this issue, the ED's position allowing questioning of adverse witnesses through the hearing officer — but not direct cross examination — does not violate constitutional due process.

Moreover, the ED's position is consistent with the policy of encouraging students to report incidents of sexual violence. The possibility of facing cross-examination by their assailants would discourage many victims from reporting sexual assault contrary to the goals of the Campus SaVE Act and the 2011 Dear Colleague Letter. These are laudable goals: protecting victims from secondary trauma, encouraging reporting, increasing accountability, reducing sexual assault, and making campuses a safer place to learn.

Standards of Proof

In a typical "he-said-she-said" case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused's and victim's credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower "preponderance of evidence" standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher "clear and convincing evidence" standard was applied and the decision was reversed.

The Department of Education has in fact established "preponderance of evidence" as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, "in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)."

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof¹ requires a different level of confidence in the facts supporting a decision:

• beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
• clear and convincing requires at least 70-75% confidence that the facts support the decision
• preponderance of evidence requires at least 50.1% confidence that the facts support the decision

In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.²

The "beyond a reasonable doubt" standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.³  The 18th Century English jurist William Blackstone explained it this way: "It is better that ten guilty persons escape, than that one innocent suffer."⁴  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a "high probability" or "reasonable certainty" that the weight of evidence favors the decision. It is applied in civil cases involving more than "mere loss of money," such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.⁵

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, "[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous."⁶

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM "blueprint," preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, "substantial evidence," is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"⁷ Strictly speaking, this standard only requires a "substantial" amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The "substantial evidence" standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student's failure to meet academic standards "calls for far less stringent procedural requirements," in terms of notice and hearing, than a student conduct violation.⁸

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,⁹ a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a "conviction for 'possession of narcotic drugs' in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person's good name and reputation." The court also pointed out that a one-term suspension from school "is a harsher punishment than he was likely to receive from either a state court ... or a federal court, for a first-time offense of simple possession of marijuana."

Under these circumstances, the court found that "any standard lower than a 'preponderance of evidence' would have the effect of requiring the accused to prove his innocence" because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a "constitutionally adequate" standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn't specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,¹⁰ another federal court refused to overturn the university's decision to suspend two public university students after they were found guilty of sexual assault even though the university's decision was based on substantial evidence. The court found the disciplinary proceeding, while "not ideal," was fundamentally fair. The court explained the tension between these two principles:

A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.

The middle ground was described as "whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial." Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as "a case of differing perceptions and interpretations of the events in question." It turns out that the deciding factor was that some of the complainant's statements began with "I think" or "I don't think." The official interpreted this as a "hesitant and equivocal response" and concluded that the complainant's credibility did not meet the higher standard of proof.

The ED found that UM's handling of that case on appeal showed an "incomplete understanding" of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed "more training on how to evaluate evidence and the appropriate evidentiary standard to assess it."

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what's at stake:

Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof "is more than an empty semantic exercise."¹¹

It has also been suggested that school officials deciding sexual assault cases may "unwittingly require clear and convincing evidence" regardless of the appropriate standard because of the serious consequences to the accused.¹² What we're left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims' behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we'll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.

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<sup>1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: "First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened ... In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. .... A second proposition ... is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than "spiking the punch at an after-school meeting." However, the court did not rule on what standard of proof should be applied but only suggested that the "clear and convincing" standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, "Preponderance of the Evidence and Student-on-Student Sexual Assault." Boston College Law Review Vol. 53:1613, 1649 (2012).</sup>

Is an Invitation to Cuddle Consent to Sex?

Jane (11:00 pm):

aww :( come cuddle with mr

Brian (11:01 pm):

I am when you get back hah

Jane (11:04 pm):

yayyy I'm a good cuddler :))

Brian (11:06 pm):

Then ill be expecting nothing less than excellence

Jane (11:10pm) :

are you a gooood cuddler

Brian (11:20pm):

I'm great you better know it

Roughly two hours after this exchange of text messages, Jane let Brian into her dorm room, where she claims he raped her.

The next day, she filed a complaint with the university.

Brian disputed Jane's account during the investigation. He admitted that they had sex but insisted it was consensual, pointing to the text messages.

The school, St. Joseph's University, was not convinced and found Brian Harris responsible for sexual misconduct, suspending him for one year.

Now Harris is suing St. Joseph's and his accuser, Jane Doe, alleging, among other things, that the university panel that heard his case did not properly consider the text messages and therefore the university is at fault for "Rendering a decision...against the clear weight of the evidence."

We won't examine the merit of Harris's legal claims here. The courts will do that. And to be clear, the assault itself was never tried in a criminal court. Harris was found responsible in a university conduct proceeding. His lawsuit is over whether that proceeding was unbiased.

But Harris's interpretation of the messages he exchanged with Jane reveals a problematic view of consent worth examining more closely.

Defining Consent

According to Harris's complaint against the school, Jane's text inviting him to "come cuddddle" is clear evidence of consent.

"In modern parlance," he explains, "the terms 'cuddle' or 'cuddling' are synonymous with, inter alia, 'sex' or 'having sex'." The complaint goes on to suggest this interpretation is "the plain meaning of the text messages." Thus Jane's invitations to cuddle are requests for and consent to sex.

In his complaint, Harris also implies that the text sent at 11:00 pm provided consent for actions that took place almost two hours later.

The problem with Harris's understanding of consent from a campus safety perspective is that it relies on neither clear words nor clear actions.  

Euphemisms like cuddle or the infamous 'hook up' are deliberately vague. While perhaps appropriate in casual conversation, these words should not be used to ask or give consent exactly because they lend themselves to misunderstandings. 

Furthermore, even if Jane had texted him 'let's have sex', Harris would still have needed to get her clear consent again several hours later when they were finally face-to-face.  Past consent does not imply future consent.

Clear words and actions should be one of the unbreakable rules students follow before they engage in any sexual activity. 

We don't want to imply that most sexual assaults are the result of miscommunication. They aren't. But Harris's complaint underscores how important it is that students have a clear concept of consent.

When Katherine Bogle was researching her book Hooking Up on college sexual culture, she discovered students held very different opinions about what the term "hooking up" meant --everything from sex to just kissing. In other words, when it comes to getting intimate with each other, students aren't always speaking the same language, and they may not even know it. A young man may think he's proposing a good night kiss, while his date thinks he's asking her to spend the night.

Starting a conversation on college campuses about terms like "cuddling," "hooking up," and other modern parlance may not resolve the ambiguity surrounding these terms -- in fact it almost certainly won't -- but it might at least force students to acknowledge it.

Further Reading

Bogle, K.A. (2008) Hooking Up: Sex, Dating, and Relationships on Campus. New York: New York UP.