6th Circuit Court of Appeals Rules against UofM in Sexual Assault Cross Examination Case
As many on this Board have also agreed with, it's good to see a bit of sanity and Due Process returning to these situations. Simply too much was being taken away from the accused to refuse them a right of defense.
Also, please keep this thread from becoming some type of cesspool. To me, this seems like a fairly common-sense victory for society and the University of Michigan community.....
September 10th, 2018 at 6:17 PM ^
A very good thing for the victims. Thumbs up from me.
September 10th, 2018 at 6:40 PM ^
Probably a bad thing for victims, though, right? Invasive cross examination to focus on sexual history, drinking habits... essentially victim blaming in some cases.
I don't think this is obviously a step in the right direction. And it's clearly political (mirroring DeVos proposal), so I can't see this being a real productive conversation.
September 10th, 2018 at 6:42 PM ^
Can you call someone a victim based purely on an accusation they've made? That's exactly what this case said a resounding "No!" to.......
September 10th, 2018 at 6:58 PM ^
That's not quite the situation. There was a single investigator that examined both sides and determined that the accusations were credible.
The court ruled that the accused also has a right to examine the accusations.
September 10th, 2018 at 7:19 PM ^
Actually, the investigator found for the male student, at least to the extent that he/she didn't feel the evidence wasn't more compelling for the purported victim than the accused. The University's appeal board heard the matter and reversed, saying that the investigator improperly minimized the comments by a Witness who, unlike the other 22 witnesses investigated, did not have a connection to either the fraternity of the accused or the sorority of the victim.
This case turned on the 6th circuit's own rules regarding credibility in an academic extra-judicial process. I don't disagree with their premise that if you are going to hold these types of proceedings you should have the ability to be heard, only that both parties were allowed to be heard in equal measure (via interviews) and the court now wants to introduce a new, more adversarial meeting because that way the both sides (but seemingly with a focus on the accused) can, frankly, try to undermine the credibility of others. If everyone is sworn under oath before a judge, then go for it. But if we are going to get into a debate about credibility in front of a school employee and without the rules of evidence applicable, then that seems like a bad situation.
September 10th, 2018 at 8:02 PM ^
But the adversarial approach is part of why so few survivors go to court. By introducing it into the process you are decreasing the chances of reporting.
if the university feels it can satisfy its criteria without adding in the adversarial approach they will likely encourage increased reporting of sexual assaults. It’s an incredibly delicate balance but I don’t think it’s so simple to just say adding it in is a positive given the subject matter and what we know of the impacts of trauma.
September 10th, 2018 at 8:42 PM ^
I personally don't think there is a need to add in any adversarial elements to the current proceedings; as you noted, it's likely to disproportionately bias survivors against reporting.
September 11th, 2018 at 10:18 AM ^
You, like many others (including UM as the opinion notes), assume that there is a victim or survivor before any evidence has been presented or findings made. As the Court ruled this is a prohibited bias in favor of the accuser and against the accused. Due process requires the ability to confront and cross examine witnesses. Alleged sexual assault allegations must be subject to constitutionally required due process like any other allegations of misconduct.
September 10th, 2018 at 9:11 PM ^
I can't get my head around the concept that an academic institution can conduct an extra-judicial proceeding that can impact a student's entire life if he or she is dismissed from the university and have no due process available. While anonymity may be part of the process, all one has to do is look back at how the Daily was publishing articles when Gibbons was in the middle of his proceeding to dispense with the notion that no one will find out what took place behind closed doors.
From my perspective, if there are sexual assault charges that are being entertained, and most of these charges are felonies, the matter should be a police item and remain outside the purview of a university. Should a prosecutor move forward with the case, the accused at least has the right to due process using "beyond a reasonable doubt" as the evidentiary basis for conviction, not the DOE's "preponderance of the evidence" standard, although I believe that this standard may have changed with the new administration to what it was originally, i.e., "reasonable doubt. If there is a conviction or a plea agreement, then the university can act.
In essence, there is too much for the accused to lose to not have the right to cross-examine witnesses and to have all constitutional safeguards available.
I'm not condoning sexual assault for one second; I just believe that universities are the wrong forum and ill equipped to address the problem or dispense justice.
September 10th, 2018 at 10:03 PM ^
Institutions engage in extra judicial proceedings all of the time because our court system is at least supposedly designed in such a way to make conviction incredibly difficult. Every single person on this blog calling for Urban's firing were arguing for an extra judicial process ending in firing. Firing Paterno and Briles were extra judicial proceedings.
Our criminal justice system structurally has plenty of positives, but it struggles mightily to handle issues of sexual assault because its nearly impossible to prove beyond a reasonable doubt. If you are comfortable with a situation where over 90% of people perpetrating sexual assault facing no consequence that is a perfectly fine argument to make, but if you are arguing only the judicial system can handle this and nobody else should do anything without a conviction that is what you are arguing for based off available statistics.
September 10th, 2018 at 10:48 PM ^
"If you are comfortable with a situation where over 90% of people perpetrating face no consequences".
I don't think any of us are fine with that but I don't believe there should ever be an innocent person convicted of anything they didn't do. I'm not comfortable with the idea of assuming that everyone who is accused of sexual assault of being automatically guilty. "Guilty until proven innocent" isn't how this is supposed to work.
September 10th, 2018 at 11:46 PM ^
But being removed from school isn't being convicted of anything. You are conflating the school's process with a judicial process. They are two different things. I agree with you on the judicial side but that does not mean that everyone has to individually use the court process as the barometer of when actions can be taken in their jurisdiction.
People arguing that Urban should have been fired, or Briles should have been fired, or Paterno should have been fired, or Dantanio or Izzo should be held accountable are using the same reasoning. An individual or institution can use a different set of standards to govern who they want to keep in their institutions and how to punish behavior outside of the judicial system. Those are all perfectly acceptable.
In this case the university has decided that to create a safe campus where sexual assault survivors feel comfortable coming forward an investigation led by a neutral third party that does not include an adversarial process where the accused gets to confront the complainant is the best process. As an institution that is their right, by attending that institution you have agreed to that process for matters regarding your status as a student. This is completely different and removed from a judicial process. You can dislike how the university handles the situation but to argue that places can do nothing outside of the criminal justice system would be a stark departure from literally the entire history of our society.
September 11th, 2018 at 9:34 AM ^
If a public educational institution: 1) expels you, and 2) makes it known to the world that you were expelled because you were found by the institution to have committed sexual assault (or something similar), it is going to have an incredibly negative impact on your life. A public institution should not be able to take such severe actions impacting someone's life (under the auspices of following procedures required by law, i.e., Title IX) without sufficient procedural rights and protections to the accused.
I do agree that an institution should have its own process and shouldn't be reliant on the criminal justice system. But any such process needs to inherently understand its limitations and should have as its focus accommodating the alleged victim rather than punishment of the accused. The result of the proceeding should generally be kept private by the institution and expulsion should generally be off the table except in cases where there the evidence is particularly strong/ incontrovertible.
Having said that, if the result of the institution's investigation is a finding that the accused is more likely than not guilty, I have no problem with placing heavy burdens on the accused in order to accommodate the alleged victim so that the victim generally should not have to have any sort of contact with that person (including limiting accused's class schedule, where accused may live, where accused may socialize, etc). If the accused doesn't like it, he (or I suppose she) can transfer to a different school, but that doesn't carry with it the same life altering stigma as being expelled and having it be made know that you've been found to have committed sexual assault through the University's investigation process.
September 10th, 2018 at 10:50 PM ^
I'm comfortable with a high bar created by constitutional safeguards that provide for due process. I can't accept the opinion that because sexual assault convictions through the criminal justice system are difficult, let's throw out a few hundred years of criminal jurisprudence because something else is easier to implement, whether the outcome is correct or not.
This isn't about getting a demerit because you were late to study hall, it is about the potential to screw up the rest of one's life over often, on university campuses, what are "he-said, she-said" situations that are frequently exacerbated by the addition of alcohol and/or drugs.
At least the standard is back to "beyond a reasonable doubt." If only the DOE would drop college-run sexual assault hearings and leave that to the criminal justice system.
September 11th, 2018 at 12:00 AM ^
You can be kicked out of school for smoking weed (you wouldn't be, at Michigan but you would at BYU for example). Yes it has a major impact but the reason would never be public, all credits would transfer, etc.
Beyond a reasonable doubt is a nearly impossible measure to achieve in sexual assault cases because if there are only two people in the room telling two different stories there is literally no way to prove beyond a reasonable doubt. Its impossible unless a person is inclined to already believe one side going in. In cases where things like prison, a permanent felony record, and truly permanent outcomes are on the line beyond a reasonable doubt is the right burden of proof.
For being removed as a student with zero permanent record, no reporting requirements, transferable credits, etc. I don't think it is unacceptable to shift the burden of proof from beyond a reasonable doubt to a preponderence of evidence.
September 11th, 2018 at 8:27 AM ^
I guess I should say thank you for making my case.
You might want to do some reading on the Fifth and Fourteenth Amendments to our Constitution. I've provided a link to the Fourteenth.
https://www.law.cornell.edu/anncon/html/amdt14efrag7_user.html
Your contention that being expelled from a university is no big deal as there is anonymity within the process makes my eyes roll. Really? Is this an example of anonymity?
https://www.michigandaily.com/sports/former-kicker-brendan-gibbons-expelled-sexual-misconduct
As I said in my initial post, sexual assault is a heinous act. At the same time, I don't want to see someone punished unless there is actual proof that the alleged act took place.
September 11th, 2018 at 8:50 AM ^
Don't be a condescending asshole. You have a disagreement prove your point. I argued that constitutional protections are not necessarily applicable in these proceedings and there are legitimate reasons why it is ok for Michigan's process to differ from the judicial process.
Also the Gibbons case is a unique example because of the publicity of college football. Yes it is a different situation for a college football player at a major university since people will notice you no longer being on the team. Since those players represent less than 1% of college students basing policy decisions off of them results in terrible policy.
You seem to have a lot of faith in judicial system, you shouldn't.
September 11th, 2018 at 9:34 AM ^
This "condescending asshole" as you so eloquently put it has more faith in the legal system than a quasi-judicial hearing conducted by a university. Between a proceeding headed by a professor or some other party with a few hours of reading an administrative manual and a court proceeding with constitutional protections that allow an accused to deeply probe the intent of the accuser and witnesses and a prosecutor in front of a jury, I'll take the latter. Every time.
I've heard of many instances where the university-based proceedings end up in court; so much for anonymity. Or, perhaps it is an athlete and because he/she is high profile, you now find it acceptable that public disclosure be allowed.
Your only contention is that it is hard to get a sexual assault conviction, so let's avoid that and go the easy way with a reduced evidentiary standard and throw out constitutional safeguards because getting thrown out of a university is no big deal and no one every finds out the reasons why. Maybe if you were put into the situation of someone wrongly accused of of sexual assault with your university as the judge and jury, you might feel differently.
Is our judicial system perfect? Hell no, but it sure as shit beats the alternative you have proposed.
September 11th, 2018 at 11:00 AM ^
If the university proceedings are ending up in court than aren't your concerns addressed? What happens once it gets to court is a completely different situation.
And saying that public discourse should be allowed isn't what I said, I said its a unique situation that a football player leaving generates media interest.
You act like a preponderence of evidence is some easily attainable standard and that even under the current regime the vast majority of people reporting sexual assault feel as if their story is less likely to be believed than of the the person they are accusing. Constitutional safeguards don't have to exist in this situation. Its like arguing your free speech is being violated if I rescind your invite to speak somewhere. You are equating expulsion as equal to the penalties of the judicial process and while it is certainly meaningful it is not anywhere close to the level of punishment the criminal justice system can hand out. Given the lower level of punishment, and the impact a cross examination and adversarial process has on sexual assault reporting rates yes I am comfortable with the university being judge and jury about who is a student on campus. And that is all they are being judge and jury on.
September 11th, 2018 at 2:48 PM ^
I'd suggest you read about due process of law, why it was incorporated into the Fifth Amendment what it means and the situations in which it would and should apply, including wrongly being expelled from a university and the potential for the loss of opportunity and reputation that one could experience.
After you try a few dozen cases on both the civil and criminal sides of the ledger, let's have another discussion about "preponderance of the evidence" vs "beyond a reasonable doubt."
September 11th, 2018 at 9:26 AM ^
"From my perspective, if there are sexual assault charges that are being entertained, and most of these charges are felonies, the matter should be a police item and remain outside the purview of a university."
Amen.
September 10th, 2018 at 8:07 PM ^
Agreed. Students have been regularly shafted by a lack of due process at universities for decades.
September 10th, 2018 at 10:34 PM ^
"Can you call someone a victim based purely on an accusation they've made?".
Hell no you can't. This shouldn't even be a question but modern political hyteria has convinced many people (who should be far too intelligent to allow themselves to be brainwashed like this) that it's actually a good thing to assume that everyone who is accused of a crime is automatically guilty. It's a shame.
September 10th, 2018 at 8:27 PM ^
An individual who is falsely accused of sexual misconduct is a victim. This ruling is good for them.
September 10th, 2018 at 10:12 PM ^
I think I agree with you on this. I do know that there are people out there who fabricate allegations and that does a massive disservice to actual victims. I personally don't like to blindly assume that every single person accused of a crime is automatically guilty. That's a slippery fu*king slope that we as a country do not want to continue sliding down. It's not good for any of us. It's all good and righteous until you get wrongly accused of something and immediately labeled as guilty in hysterical court of public opinion.
September 11th, 2018 at 12:12 AM ^
Doesn’t that depend on who the victim is? If someone is falsely accused wouldn’t they be the victim. We have moved very clearly into a society where an accusation is tantimount to a conviction. The public calls for immediate punishment such as suspensions, lose of jobs, or some form of ostracism without any thought of due process.
September 10th, 2018 at 6:24 PM ^
Let's just shut this thread down now. This is a discussion that requires taking into account a delicate balance between rights of accused and the ability of rapists and assailants to further harm their victims. The discussion needs to take into account the venue here, Title IX, as well as power dynamics and history. Given the past postings on here, including by the OP, I have zero hope that this will be a beneficial discussion.
With that said, I'm out of this thread.
September 10th, 2018 at 6:30 PM ^
This case is actually quite a bit more straightforward, and these findings are simply not something to sweep under the rug and forget about. It really has nothing to do with sexual assault, and all to do with Due Process. A University has absolutely no right to deprive anyone of this, and the fact that they believed it acceptable in one certain type of case deserves a great deal of additional scrutiny.
September 10th, 2018 at 6:38 PM ^
IANAL, but this is not a criminal court/case that we're talking about. I'm not sure that due process in terms of university standing has been established. The university would probably argue that having a neutral 3rd party investigator is enough to ensure fairness. Others would disagree, clearly.
September 10th, 2018 at 7:58 PM ^
"The university would probably argue that having a neutral 3rd party investigator is enough to ensure fairness."
Clearly the University does not believe this, as it makes hearings available to the accused in every single other type of student misconduct evaluation.
The sensitivity of the matter requires additional protections for both parties, but the right to a hearing seems an indispensable part of due process.
September 10th, 2018 at 8:31 PM ^
"I'm not sure that due process in terms of university standing has been established." UM is a public institution. It is black letter law that they are required to provide Due Process when they act to deprive a student of a property interest.
September 10th, 2018 at 8:49 PM ^
It is not "black letter law"; in fact, the whole issue is that a university shouldn't hold legal proceedings at all because they are, as has been noted both here and elsewhere, not a legal entity. This individual went and filed an actual lawsuit because that is the proper protocol for a deprivation of property; this decision is trying to move that process out of the court's purview and, in my opinion, likely going to create more issues than it purports to address.
September 12th, 2018 at 1:13 AM ^
Where did you go to law school? All schools have the right to determine who is allowed to attend. When a public school deprives an admitted student of his property interest in remaining in school it must follow due process in doing so.
September 10th, 2018 at 10:26 PM ^
I can't see anything going wrong with a system that denies due process and instead relies on a "neutral" 3rd party investigator to ensure "fairness".
Fairness is not justice. Due process is an inalienable right that should apply at all times.
September 10th, 2018 at 6:35 PM ^
I expect someone to get called a Social Justice Warrior before this thread gets locked
September 10th, 2018 at 6:41 PM ^
I'd like to start by saying that everyone who posts in this thread is going to be a cuck, a Social Justice Warrior, a rape apologist, a hysterical McCarthyite, a witch hunter, a witch, a morally panicked man-hating lesbian, a self-hating man, a misogynist, a cocker spaniel, or a Russian bot.
September 10th, 2018 at 6:48 PM ^
You skipped "safe-space-loving Millennial Snowflake." Don't you know anything??
September 11th, 2018 at 10:30 AM ^
Good one
September 10th, 2018 at 6:49 PM ^
How dare you call me a cocker spaniel. I’m a springer spaniel, you dog shamer.
September 10th, 2018 at 9:40 PM ^
How about us drunk folk that can't understand shit? Don't we get a voice or an ear or some kind of shit?
September 10th, 2018 at 8:21 PM ^
Probably not. I plan to abstain from anything political from here on out, so that lowers the odds of those terms being thrown around pretty significantly.
September 10th, 2018 at 9:47 PM ^
I don't know what your views are, but now more than ever, any political discussion among non horrible people is appreciated. About 50% of eligible voters don't vote so maybe sports blogs should talk about this. Also Kapernick.
September 10th, 2018 at 10:17 PM ^
Culture warrior is a more like it. Most of us (regardless of political ideology) are all for social justice, it's the ones who take it to ridiculous extremes that end up looking like idiots. M'kay
September 10th, 2018 at 6:52 PM ^
This will end well.
September 10th, 2018 at 6:53 PM ^
This is obviously a very delicate, complicated topic. I don't think it was out of malicious spite that public universities put the protection of [potential] sexual assault victims above the basic right of the defendant to cross-examine. However, this seems like a very necessary swing of the pendulum closer to a common sense middle ground.
September 10th, 2018 at 9:44 PM ^
If defendants cannot cross-examine their accuser the whole justice system is fucked. This is a basic right, especially if/when? the accuser is the government.
September 10th, 2018 at 10:21 PM ^
Agree 100%. This should be common sense.
September 10th, 2018 at 7:03 PM ^
While I have a strong opinion on this, I don't think this topic belongs on this board. Mods, if you're listening, please keep contentious subject matter off the board.