Tuesday, January 8, 2019

Appeals Court Demands that Students Accused of Sexual Assault be Allowed to Cross Examine their Accusers

Here's interesting news from California with regard to the ongoing fights over sexual harassment in our universities:
The California Court of Appeal for the Second District sided with a former University of South California (USC) student, "John Doe," who argued that his expulsion for sexual misconduct, after a female student accused him of rape, violated his due process rights.

Doe, a black male freshman on a football scholarship, filed suit against USC, alleging the administrators who handled his case were biased and provided him with no meaningful opportunity to prove his innocence. The court disagreed about administrators' bias, but agreed that Doe's due process rights were violated because he was never afforded the right to cross-examine his accuser: "Jane Roe," then a female senior and athletic trainer.

"We hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of that allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly," wrote Presiding Judge Thomas Willhite in his opinion.

This cross-examination must take place at "a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments."
This is a state ruling based on California law, but I think it represents a change taking place across the country. As this thinking spreads it will force a major change in how universities handle these cases. Up until now the courts have pushed universities to be fair and to conduct careful investigations, but they have never granted a right to confront your accuser in a school disciplinary hearing.

It's an interesting sort of "beware what you wish for" situation. Feminists long complained that universities did not take claims of sexual assault and sexual harassment seriously enough. So the Obama administration pushed schools to set up semi-judicial offices to investigate all such complaints and punish offenders. This produced an outcry from others that these offices were secretive kangaroo courts where no man could ever be found innocent, and dozens have sued universities that expelled them. Ever more frequent judicial review has pushed universities to act more and more like actual courts.

The upshot, it seems, is that women who claim sexual harassment or assault on campus will be subjected to the same type of invasive investigation and hostile questioning that makes rape victims so reluctant to complain to the police, and the idea that university administrations might provide an alternative venue where victims might get some measure of justice without going through that will have failed.

I don't know how I feel about this, except to say that justice is hard.

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