As Devos pushes for campus sexual assault hearings, both sides describe trauma
The email offered the Western Michigan University student what she saw as a no-win choice. She could go to a hearing and let the male students she had accused of sexually assaulting her ask her questions or she could stay away and watch them walk away without any punishment.
"It literally killed my heart," she told the Free Press. "The need to test me — it was very discouraging to me."
Her choice is about to become a lot more common in the nation's colleges and universities as higher education institutions transform the way they investigate claims of sexual assault, thanks to pending changes in federal rules. The rules are simply a proposal now. More than 100,000 comments on the proposal have been left with the U.S. Department of Education. Experts say it could take months for the final rules to come out and there's no guarantee the mandate for live hearings with cross-examinations would end up in the final version. However, U.S. education secretary Betsy DeVos is known to favor the hearings.
Even if those rules don't change, schools in states covered by the 6th U.S. Circuit Court of Appeals, including Michigan, are already making the changes, forced to do so by a series of court rulings, including a landmark one involving the University of Michigan. There are several other court cases pending in Michigan that could further strengthen the court's mandate for universities to offer hearings.
Out is the old way of investigating — the so-called single investigator model, where a single university employee or outside expert interviews the accuser, the accused and any witnesses separately and then writes up a report. In is a new model where either side can get a live hearing, with direct cross-examination by the parties involved.
"Due process requires cross-examination in circumstances like these because it is 'the greatest legal engine ever invented' for uncovering the truth," the 6th Circuit wrote in a September 2018 ruling. "Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence, or potential ulterior motives."
The Western Michigan University student said the assault happened in September 2017.
Among the questions she was asked at her hearing: What did she talk about with her friends as they met up with the male students who allegedly assaulted her? Had she really just consented to the sex and was just making up her story? What was the conversation in the bedroom before, during and after the assault?
Then she was asked to demonstrate the position she was in when she was assaulted.
The student said she was terrified and unsure about what would happen. But she wanted to see the male students held accountable, so she persevered.
The hearings aren't just stressful for those making the accusation — they are also taxing for those accused of a sexual assault, said Justin Dillon, a former federal prosecutor whose Washington D.C. firm KaiserDillon represents accused students and has handled dozens of hearings.
He warns his clients the hearings are going to be emotional.
"The complainant is probably going to cry," he said he tells his clients, "but don't let that throw you."
Some of his male clients will also cry.
"They are just so overwhelmed," he said. "They have to be ready for it to be very emotional. Crying is fine."
What's not fine is reacting with anger.
"You can't look pissed off," he said.
How the hearings are conducted
When it came time for her Nov. 8 hearing, the Western Michigan student — whom the Free Press is not naming because it does not identify sexual assault survivors without permission — went to the campus' Title IX offices, located toward the edge of campus.
"We had no idea how the school would orchestrate the cross-examination of my client by the boys who assaulted her," the woman's attorney, Megan Bonanni, told the Free Press. "I felt confident about her emotional state but I could not prepare her for the process. ... I coached her to maintain her confidence, reminded her that the truth will shine through. She was nervous but confident. The only real anxiety was being confronted by the accused."
The offices included a small conference room and an open reception area.
Getting into the right rooms took time and coordination as university officials tried to handle logistics so the female student wouldn't run into the male students she was accusing in the hallway or reception area.
A consultant was brought in to run the Nov. 12 hearing. Each side was in different rooms. As each side was cross-examined, they were brought into the room with the hearing officer, while the other side watched via video. Witnesses came into the room with the hearing officer and were questioned by the officer and both sides. The female student was able to be in the room with two female witnesses, while the accused watched and asked questions via video. The two parties switched when the witnesses for the accused were questioned.
Each side could have a lawyer or adviser with them, but the lawyers couldn't talk during the proceedings to ask questions. Most of the questions had to be submitted in advance; however, follow-up questions were allowed, with the knowledge that the hearing officer could veto any question asked by either side.
While the attorneys weren't allowed to ask questions, they could consult with their clients. The woman's attorney, Bonanni, scribbled questions on notepaper and also whispered into her ear as the female student asked questions. The attorney was not allowed to consult with her client when she was answering questions from the students she had accused.
Throughout the three-hour hearing, documents were referenced and a university attorney would deliver them to each side. That slowed down the pace of the hearing but kept each side separate.
"It was very traumatizing," the female student told the Free Press a month or so after the hearing. "The questions that they asked me were respectful but painful. I had to attend or the boys would be found not responsible."
Among the questions — a request for the female student to demonstrate the position she was in when she was assaulted, an attempt to prove she should have known who she was having sex with.
The female student says she was having consensual sex with one male student when another male joined in.
She said she did not consent to having sex with him.
The student said the school itself did the best job it could to make her comfortable, but "it's just hard to have to answer questions from the people who assaulted you."
Two weeks after the hearing, the female student got another email from the school. This one had happier news for her — it had found in her favor, saying the preponderance of evidence showed she had been sexually assaulted.
Hearing proponents say they are important
There's a very simple reason for having hearings, say those who are accused of sexual assault and those who work with them.
"As anyone who’s done even a single trial would tell you, there is no better way to test someone’s truthfulness — regardless of which side they’re on — than through cross-examination," said Dillon, whose law firm has done scores of hearings in many states. "It’s all fine and good to come in with a story, but how you respond when pressed is what really matters."
The challenge is how much to press, and who's allowed to do the pressing.
The hearings generally take place in front of either a hearing panel — normally made up of staff, faculty and sometimes students — or a hearing officer, often someone from outside the school.
It's those people's job to decide how questions get asked and answered.
"You have to find the right balance between clearly describing the rules, what to expect, the structure, while providing enough flexibility to govern and rule during the hearing," said Rebecca Veidlinger, a former prosecutor, former Title IX investigator at the University of Michigan and former interim deputy Title IX coordinator at Michigan State University who now consults and trains universities on Title IX issues, and has run a hearing.
In most hearings, both sides are limited to asking previously submitted questions.
"But what if there's an answer that warrants a follow-up question?" Veidlinger said. "The person running the hearing has to have the latitude to allow it, but also to know when the question is going into areas that shouldn't be asked. It's balancing the process with the rights of those in the hearing."
Getting that balance right means training those doing the questioning, she said. That takes time, as do the hearings. There is no standard method of picking who serves on a panel or the training they need to have. That's all up to each school.
"You need to have people (on the panels) who have the time to invest in this, rather than just adding this on to all their other responsibilities," Veidlinger said. "It's worth the time if we are going to get it right and give students a fair process."
Dillon has been in a lot of different hearings. They all seem to have about the same setup: a main room with the panel or hearing officer and some sort of private room nearby for each side. Inside the main room, the setup can vary, including sometimes having some sort of room divider placed between the two sides so they can hear each other, but not see each other.
The hearings often start with opening statements — the accuser often goes first, then the accused. Each side then questions. Then come witnesses. Finally, there's some sort of final statement from each side.
Lawyers for each side will drill and pre-write statements and questions for their clients. But come time for follow-ups, and it's time to do some quick talking.
“I’m scrambling to write questions so my guy can hand them in and we can get them asked," he said
Questions are generally thought through beforehand — both those that Dillon's clients are going to ask and those that they are going to answer.
But don't get a picture of students yelling at each other or up in each other's faces.
"There's no meaningful confrontation," Dillon said, adding that hearing officers often soften the questions or shrink the line of questioning. "There are no hard questions. If anything, the panels are super nice to the accuser. Everyone is asked very open-ended questions."
Education department gets 100,000 comments
For most of the nation's universities, a mandate to implement live hearings with cross-examination could still be months away.
DeVos announced proposed rule changes to Title IX in the fall that included holding hearings and allowing cross-examination. Those rules were then open for comment until Jan. 30. Approximately 100,000 comments were made on the proposed rules and the education department will have to go through all of them before deciding whether to continue the process of mandating changes.
The American Council on Education, higher education's biggest lobby, sent a 33-page letter signed by a number of higher education associations, opposing many of the changes, including the addition of live hearings.
The proposed rules impose "highly legalistic, court-like processes that conflict with the fundamental educational missions of our institutions. We repeat: Colleges and universities are not law enforcement agencies or courts. Unfortunately, the (proposed rules) consistently rely on formal legal procedures and concepts, and import courtroom terminology and procedures, to impose an approach that all schools — large and small, public and private — must follow, even if these procedures, concepts, and terms are wildly inappropriate and infeasible in an educational setting. The proposed rule assumes that institutions are a reasonable substitute for our criminal and civil legal system. They are not."
Dillon isn't surprised most of the comments sent to the education department are negative.
"Accused students simply don’t have the same option to participate publicly in this conversation," his firm wrote in its comments on the rules. "If an accused student is found responsible, people reason, they must have done it. If they’re found not responsible, then many people believe that they did it and the school mishandled the case. If you publicly identify yourself as a 'falsely accused rapist,' most people either won’t hear or will ignore the first two words."
Dillon's firm is supportive of the addition of hearings.
"Requiring a live hearing at higher-education institutions, with live cross-examination by the parties’ advisers, is perhaps the single most important proposed change in the entire proposed rule. No change will do more to ensure that these hearings are fair. In our experience, schools often fail to challenge an accuser’s testimony in any meaningful way. They simply don’t ask hard questions. We have seen far too many cases where, for example, a series of text messages provides strong evidence of the accused student’s innocence — but the investigator or the panel never asks a single question about them."
But schools in Michigan — and Ohio, Kentucky and Tennessee, the states covered by the 6th Circuit Court of Appeals — have to make the changes now, thanks to the court ruling.
That court ruling came out of a case involving U-M, where a male student sued in federal court. The case the appeals court considered centers on a sexual encounter at a fraternity party. The male student was eventually thrown out of school.
The student then sued U-M, alleging his due process rights weren't granted. A lower court ruled against him, but he appealed.
His argument was that the university already gave students accused of every other type of misconduct the right to a hearing and cross-examination.
The ruling backed a 2017 ruling in a case involving the University of Cincinnati, where the 6th Circuit said having the accuser being questioned by the accused would allow the person making the judgment to observe "demeanor," which would help the person judge the honesty with which someone was speaking.
U-M fought the ruling by the 6th Circuit, asking for a review by the whole court, but it was denied. Last semester, the school grudgingly changed its policy to have hearings.
"The change was necessary to follow the law, but U-M respectfully submits that the 6th Circuit got it wrong," U-M President Mark Schlissel wrote in a post on U-M's web site on Jan. 29. "It is our hope that any rule changes will not nationalize the challenges presented by this case by taking a one-size-fits-all approach.
Even as we comply with the current law, we continue to believe that having experienced, fair hearing officers posing questions to all parties and witnesses based on input from both sides is the best way to determine the truth and minimize harm to all students involved."
Every Michigan university has made or is in the process of making changes to its policies to incorporate live hearings, according to a Free Press survey of the state's public universities.
"It's getting more and more like a court case," said Jesse Bernal, vice president for inclusion and equity at Grand Valley State University. "That gives us a whole new set of challenges."