If you are accused of a crime, you are guaranteed certain rights. One of the most important of these rights is the right to confront and cross-examine your accuser and witnesses who are brought forward to testify against you.
However, if you are under a Title IX investigation by your university for sexual misconduct, you do not have the same rights as you would in criminal court. Here is what you need to know about cross-examining witnesses in a Title IX investigation.
Direct Cross-Examination is Not Necessarily Guaranteed in a Title IX Investigation
Every college or university that receives federal funding is required to investigate a sexual misconduct complaint under Title IX. During a Title IX investigation, the school must give equal protection to both the accuser and the accused. As the law currently stands, this does not mean that the school must guarantee you all rights that are available to you in a criminal trial, including the right to directly confront and cross-examine witnesses.
In fact, in the past, schools have been strongly discouraged from allowing witnesses to be cross-examined based on the belief that fewer victims will come forward if they know they will be forced to answer questions from the person they are accusing of committing sexual misconduct.
It is important to note that the law is changing almost daily on this issue.
Changes on the Way for Title IX?
Recent court of appeals rulings have begun to make Title IX investigations somewhat more in line with criminal trials. In at least one case, the University of Cincinnati did not require an alleged victim to attend a Title IX hearing to answer questions. The school ruled against the accused student. On appeal, the Sixth Circuit Court of Appeal held the university had denied the accused student due process when it made a credibility determination without observing the accuser’s behavior under questioning.
Does this ruling mean that Title IX investigations are on their way to becoming more like criminal trials? Not necessarily. The court in that same ruling stated it would be appropriate to allow the complaining witness to receive questions ahead of time and to appear remotely through video conferencing technology.
To that end, Secretary of Education Betsy DeVos has proposed rule changes to Title IX that would require colleges to allow cross-examination of the accuser in a live hearing through an advocate. The proposed change would ensure the safety of the alleged victim by allowing questioning to occur in a separate room.
Why You Should Hire a Lawyer for a Title IX Investigation
If you are subject to a Title IX investigation, you are facing serious consequences that could affect your education and your future. That is why it is important that you speak to an experienced Title IX attorney at Wallin & Klarich if you or your child is under investigation by his or her school. Our skilled Title IX attorneys will be able to advocate for you so that you can obtain the best possible outcome in your case.
Contact the Title IX Attorneys at Wallin & Klarich Today
If you are the subject of a Title IX investigation, you should discuss all available defenses with an experienced Title IX defense attorney as soon as possible. At Wallin & Klarich, our skilled Title IX lawyers have more than 40 years of experience successfully representing clients facing school investigations. Let us help you now.
With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, there is an experienced Wallin & Klarich Title IX attorney available to help you no matter where you are located.
Contact our offices today at (877) 466-5245 for a free phone consultation regarding your case. We will get through this together.