Victims Demand Due Process Rights in Title IX Cases

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Marshall University of West Virginia has settled a lawsuit with a former freshman student who alleged that the university’s Title IX judiciary bungled her complaint of a rape that occurred in her residence hall.

A witness, also in the room, corroborated the student’s account that she withdrew consent by repeatedly telling her assailant to stop. He told her, “you just need to take it.” She also sought treatment at a nearby hospital following the event.

Marshall delayed announcing an exoneration of the male accused student until the last day of finals at the end of the 2016 fall semester. The school then delayed the alleged victim’s internal appeal, only making a decision—again in favor of the accused student—at the end of the next semester.

The accused student claimed there was affirmative consent. He said the young woman invited him into her room, where they agreed to have sex in the presence of another couple who were separately having sex in the same room. While she claimed that she was intoxicated, he argued that he had no reasonable expectation of knowing this.

In her lawsuit, the young woman argued that Marshall denied her basic rights to challenge the accused rapist’s story. Marshall denied her some of the rights that are the foundations of criminal, civil, and administrative proceedings in almost every other context. She was not allowed to present evidence or cross-examine the accused.

Her complaint also argued that Marshall disregarded its own policies for deciding Title IX sexual misconduct proceedings. After the police only charged the accused student with illegally consuming alcohol, the school never held a hearing or considered evidence that would have supported her rape accusation.

The incident caused the student’s grades to drop, she lost a scholarship, and she ultimately withdrew from the university.  She then sought the help of a Title IX attorney and sued Marshall in federal court.

The case is another example of students seeking legal remedies with the help of experienced Title IX attorneys where university administrators do not follow their own rules, do not allow students to challenge evidence, or do not consider all the evidence.

Recently proposed rules for implementing Title IX would, if adopted, require cross-examination in campus Title IX sexual misconduct hearings and the full disclosure of potential evidence. Some advocates of victims’ rights and universities have criticized this proposal as putting additional stress on the victims of sexual assault. As the Marshall case makes clear, however, students alleging sexual assault will demand the right to cross-examine no less than accused students. Cross-examination, however, imperfect, is a time-tested tool for assessing credibility, exposing false statements, and revealing the truth. 

Likewise, schools that run roughshod over their own policies and give short shrift to due process rights are no more likely to benefit victims than accused students. Ultimately, investigations and hearings should be designed to uncover the truth and eliminate bias. The Marshall case shows that victims, no less than the accused, want and need the unbiased truth.