In our representation of students accused of sexual misconduct on campus, we have recently begun to see investigators and decision-makers apply a legal doctrine – called the “outcry witness” doctrine — intended to protect child victims to cases involving adults.
This is yet another example both of how colleges infantilize students and how they run kangaroo courts that distort evidence while at the same time depriving students of the protections they would be entitled to in a real court.
“Outcry Witness” Laws and the Dangers of Hearsay
In the law, an “outcry witness” typically refers to an adult, over the age of 18, who hears an allegation of abuse made by a child. In its origins, this doctrine was not meant to apply to full-grown adults. Grown-ups are expected to have full legal capacity. Adults are generally assumed to have agency and be capable of speaking for themselves.
As first introduced in the 1980s, “outcry” statutes created an exception to the rule against hearsay for child sex abuse cases.
For example, Texas introduced such a law in 1985. As the Texas Court of Criminal Appeals explained, the intent was “to create a narrow hearsay exception [but] to permit the admission of the statements only after certain procedural safeguards are met.” Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990) (Clinton, J. dissenting).
Hearsay refers to out-of-court statements that were made by someone other than the person testifying and that are introduced for the truth of the matter asserted.
So for example, if I get on the witness stand at a murder trial and say, “Someone somewhere told me once that Jim did it,” that is hearsay in its rankest form. Unless hearsay falls under an exception, it cannot be considered as evidence that Jim did it. Broadly speaking, courts weed out hearsay because the person who actually made the statement is not testifying under oath and is not present to have their credibility tested.
There are many problems with allowing hearsay evidence. In addition to the fact that the testimony was not made under oath, there is inevitably distortion as stories are repeated from person to person. Anyone knows this from playing the game “telephone” or “whisper down the lane.”
Still, the law has always recognized exceptions to the rule against hearsay. There are situations where the importance of testimony greatly outweighs the problems with admitting hearsay. For example, if a murder victim states on her deathbed, “my husband stabbed me,” and then dies, the “dying declaration” is admissible even though it is also hearsay – an out-of-court statement admitted for the truth asserted. This is because it has tremendous probative value: the victim, having died, will never be available to testify; and it is also assumed that a dying person lacks a calculating frame of mind to lie.
The Outcry Witness Doctrine Is a Narrow Exception
The outcry witness doctrine recognizes the difficulty in obtaining testimony from very young children (or mentally incapacitated adults) who may have been the victims of abuse. Statutes, like the Texas outcry witness statute, therefore make a narrow exception for the first statements a child victim makes to a trusted adult. Because of the dangers of hearsay, however, the laws draw a very narrow exception.
In Texas, for example, the alleged victim must be either a child under 14 years of age or severely disabled—that is, lacking in legal capacity (“substantially unable to protect the person’s self from harm or to provide food, shelter, or medical care for the person’s self”). Tex. Code of Crim. Pro., Art. 38.072, § 1, § 3. The law assumes adults with mental capacity are capable of reporting their accounts first-hand.
Second, there can be only one “outcry” witness, who must be a fully, legally competent adult: “the first person, 18 years of age or older, other than the [accused], to whom the child or person with a disability made a statement about the offense …”
The Campus Infantilization of Students and Removal of Safeguards against Hearsay
The application of this doctrine on campus is another way in which adult college students have been infantilized by the Title IX office. Title IX investigators and decision-makers have adopted the “outcry witness” doctrine to create evidence that does not exist anywhere else in American law or society.
In one recent case, for example, an investigator found an accuser’s four friends to have an interest in collaborating with her and each other to match up their stories. One of these witnesses openly expressed her desire to “harm” and “hurt” the accused (a fact that the investigator proceeded to suppress in her report). Yet the investigator declared all of these witnesses to be credible “as outcry witnesses.” This boosted the accuser’s evidence simply by virtue of the fact that she repeated her story to multiple friends, who then worked out their stories with her and each other.
Precisely because of the danger that secondhand accounts will become distorted, or that sympathetic witnesses will collaborate, “outcry witness” statutes include protections against just this kind of witness manufacturing and rumormongering. The Texas statute provides that the trial court must hold a hearing outside the presence of the jury, and the judge decides whether the “outcry” statement “is reliable based on the time, content, and circumstances of the statement.” Tex. Code of Crim. Pro., Art. 38.072, § 2(b)(2).
On campus, there is no such rigorous test.
Typically, the campus Title IX bureaucrat anoints an “outcry witness,” thus converting someone who heard about an incident secondhand as unquestionably “credible” without further ado—often despite evidence of their untrustworthiness or bias.
If You Are Accused on Campus, You Will Need a Lawyer
With child victims, the compelling reason to accept the “outcry witness’” statement is clear. Children are more vulnerable than adults. They may be confused. They are impressionable. The logic behind the doctrine is that the child’s first statement, often made in distress, to whomever they trust the most, usually a close family member, is likely to be both nearest in time to the event and the least tainted by subsequent influences on the child’s direct, unmediated experience. Similarly, children are presumed to lack the sophistication to lie convincingly about such a weighty issue as child sexual abuse.
Given the general attack on due process in campus Title IX proceedings, however, the doctrine has crept into the campus courts without any of the procedural protections that apply in criminal cases. It is invariably used to manufacture evidence that favors the accuser. There is no “outcry” witness doctrine that protects the accused’s witnesses or anoints them as automatically credible.
Given the proliferation of these doctrines, anyone accused of sexual misconduct, whether under Title IX or non-Title IX sexual misconduct, faces a tilted playing field. You will need an experienced higher education attorney to defend yourself, develop the evidence you need, and make sure the campus investigators follow the rules.
