Survivors who are deciding whether to file a complaint against their assailant at Miami University will now have to ask themselves a new question: “Am I willing to let my rapist personally interrogate me in front of school administrators?”
According to the Miami Student, the school has updated its sexual misconduct procedures to allow students—or their representative, i.e. attorney—to directly cross-examine each other during hearings. Previously, both the complainant and the respondent would state their questions through the person chairing the misconduct hearing. Students received the announcement in an email from Dean of Students Kimberly Moore.
“When the credibility of one or more of the parties is at issue and suspension or dismissal is a possible sanction, students will be given the opportunity to ask questions directly of one another following questioning by the hearing officer or panel,” Moore wrote.
Framing sexual assault as an issue of credibility is dangerous. It should be about whether the assault happened. Unfortunately, the university seems all too eager to adopt policies that will make it even more difficult for survivors to come forward and hold assailants on campus accountable.
The new policy comes after the federal Court of Appeals for the 6th Circuit ruled in favor of a student who was expelled from the University of Michigan (U-M) after being found responsible for sexually assaulting another student. The former student says his due process rights were violated. He appealed after a lower court ruled against him.
U-M used a single-investigator model to investigate sexual misconduct complaints. An official—a Title IX officer, for example—interviews both sides and potential witnesses and makes a decision based on evidence. The recent ruling says that there must be a hearing where cross-examination occurs.
Miami University wasn’t using the single-investigator model like the University of Michigan’s. It held hearings before a three-person panel led by its chair. Why is Miami changing its policy?
Experts say that due process is possible without making each side personally interrogate the other. As S. Daniel Carter, president of Safety Advisors for Educational Campuses and a longtime national expert on campus crime issues, told the Detroit Free Press:
As this court has recognized multiple times, it is readily possible to afford the accused required due process by affording them cross-examination through a third party. Requiring that complainants and respondents interrogate each other could lead to needless traumatizing and going astray from pertinent lines of questioning as students, in particular, aren’t trained to do so. Introducing active attorneys would profoundly upend six decades of well-established conduct proceedings that aren’t full judicial proceedings.
This change makes it possible for the hearing to go awry; now assailants have an opportunity for institutionally sanctioned intimidation with guaranteed witnesses. It also gives low-income students a disadvantage: A wealthier student with more resources could easily hire an expensive professional, like a prosecutor, while a poor student may just have a family friend or advocate there for moral support.
U-M filed a brief to appeal the court’s decision.
Originally written for Daily Kos on October 3, 2018.