- A federal judge instructed the University of Michigan to ignore its policies for investigating sexual assault and instead hold a live hearing so that a student accused of rape can question his accuser, Inside Higher Ed reports. The outcome of the hearing could have national implications on an emerging pattern of case law suggesting that those accused of sexual violence have the right to question the evidence against them.
- The Michigan male student accused of sexual assault sued the university in June, alleging that its sexual assault policies deprived him of his right to due process. The student was accused of rape in April after a sexual encounter the previous November he claims was consensual. It has not been determined whether or not he committed an assault.
- The ruling does not mean that the accused student will directly ask his accuser questions; rather, the accused will be given the opportunity to challenge the accuser’s claims.
Colleges and universities may have to change how they handle campus sexual assault hearings in light of the federal judge’s instructions to the University of Michigan to hold a live hearing so that a student accused of rape can question his accuser. A common practice at some institutions is to hire a single official, either someone who works at the university or someone from the outside, who interviews the accused and accuser to decide if a sexual assault occurred. The challenge with this model is that sometimes neither person can question the other. David A. Russcol, a lawyer who specializes in Title IX, warns that institutions lose control when using live hearings because the outcome of the case is determined by a panel of students or staff members, rather than an investigator they chose.
In 2017, Education Secretary Betsy DeVos was committed to replacing what she called a failed system of campus sexual assault enforcement in an effort to ensure fairness for the victim and the accused. DeVos wants to rescind previous Obama administration guidance around using Title IX as a way to deny the right to due process to those accused of rape.
Sexual harassment cases can be costly with institutions to settle. Twenty two universities and university systems paid $10.5 million to settle sexual harassment claims in 59 cases in 2016 and 2017. The settlements involving students, staff and faculty members came about when institutions failed to respond to allegations in a proper manner, or they did not punish the accused appropriately.