UB op-ed: Cross-examination in a Title IX investigation can be problematic

Mark J. Ehlers and Julieanne Himelstein are former federal prosecutors and co-leads of the Educational Investigations Practice of Kroll, a division of Duff & Phelps.

Much has been written about the U.S. Department of Education’s proposal to require schools conducting Title IX investigations to give the parties an opportunity to cross-examine each other during a hearing. Some laud the proposal for strengthening due process for the accused. Others criticize it for attempting to “revictimize” the alleged victims of sexual assault and sexual harassment, thus chilling their desire to report in the first place.

As professionals who have investigated hundreds of Title IX claims on behalf of colleges and universities, we believe that inserting cross-examination and other adversarial, courtroom-like procedures into the Title IX investigation process will do little to bolster due process and will only cause confusion, resentment and undue burdens on an already overburdened Title IX system at most universities.

A Hollywood exaggeration

As former prosecutors and trial attorneys, we are avid proponents of cross-examination in adversarial settings. We practiced it for many years in courtrooms and criminal trials before judges and juries. In the context of a civil or criminal trial, cross-examination helps the jury assess credibility through questioning that tests a witness’s factual details or exposes prior inconsistent statements or other potential weaknesses in the witness’s testimony. Cross-examination can be dramatic. For the most talented and experienced attorneys, it is an art that can take decades to master.

We are concerned, however, that in the Title IX context, cross-examination adds nothing but a fake veneer of due process. Why? In part, because the fact-finder will already have a report of the investigation that includes a summary of the evidence, including the facts developed by a Title IX investigator.

If properly conducted, the investigator will have made factual findings through vigorous and skilled questioning of the parties and witnesses, and will have included corroborating documentation, text messages and other independent evidence.

Our experience teaches us that due process occurs when there is an independent, fair and objective investigation that includes skilled and compassionate questioning of the parties. A skilled investigator asks challenging questions and, when appropriate, confronts the parties and witnesses with inconsistent, illogical and contrary narratives, and considers corroborating evidence (or the lack thereof), motives to lie (and the absence of), contemporaneous reports to third parties (and delayed reports), and other relevant facts surrounding the allegations. Most existing Title IX investigations already allow for the parties to submit questions to be asked of each other.

In the Title IX context, cross-examination adds nothing but a fake veneer of due process

As criminal prosecutors, the hard work occurred during the investigation before trial, in the privacy of offices and interview rooms, when the facts were scrutinized, key evidence obtained and witness credibility tested. The notion that cross-examination is a magical tool which suddenly exposes lies and inconsistencies is an exaggeration exploited by Hollywood. In the context of Title IX, a cross-examination requirement places an undue burden on schools to radically alter how cases are handled with little regard for truth, accuracy and fairness.

The alcohol problem

Alcohol is another more practical reason that cross-examination in Title IX investigations often provides little additional due process. As Emily Yoffe wrote about the proposed regulations in The Atlantic article “Reining In the Excesses of Title IX”: “Many of the cases involve alcohol-lubricated encounters that both students agree began consensually.”

Why does alcohol make a difference? Because the essential question in many of these cases is whether the claimant was so intoxicated at the time of the alleged assault that she (or he) was unable to consent—i.e., that she lacked conscious knowledge of the nature of the act and was unable to understand the who, what, where, how or why of the sexual interaction. This questioning typically does not apply to the respondent.

The issue for the respondent is whether he (or she) knew or should have known that the claimant lacked the capacity to consent. Resolution of the case thus hinges on the respondent’s state of mind, not the claimant’s state of mind.

Most policies distinguish incapacitation from a state of impairment termed “blackout.” In the latter case, the defining issue is whether the respondent knew or should have known the claimant was in a blackout state and too drunk to knowingly consent. These cases are particularly difficult because when someone is in a blackout state, he or she may appear entirely functional to others.

In both scenarios, it is not the claimant’s recitation of facts or recall that matters because the claimant likely remembers nothing other than sporadic details about the party, pregaming activities, a dance or a kiss with the respondent at a bar earlier in the evening, or that there was a lot of alcohol in red cups, for example.

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Within the context of these facts, which repeat themselves ad nauseam on college campuses, and a thorough and independent investigation by skilled investigators, how does cross-examination enhance due process when the truthful answers to questions regarding the sexual encounter are: “I don’t remember” “I don’t know” or “I was wasted”?

Here is the likely cross-examination of a claimant in a sexual assault case that stemmed from an alcohol-infused evening that resulted in a blackout or incapacitation:

Q: You pregamed with your friends before you arrived at the party, didn’t you?
A: Yes.
Q: Once you arrived at the party, you were continuing to drink, right?
A: Yes.
Q: And you danced with [Doe] at the party?
A: Yes.
Q: And you and [Doe] kissed at the party?
A: Yes.
Q: And you and [Doe] then went to his room?
A: I don’t know what happened after the kiss. The next thing I remember is waking up in his bed. I was naked. When I got up to leave, I noticed a used condom on the floor.

Because the claimant is unable to answer questions about the sexual encounter or provide any details following the moment when her memory becomes unclear the fact-finder must rely on the respondent’s, not the claimant’s, credibility.. Thus, in this scenario, it is cross-examination of the respondent that would be most illuminating, not cross-examination of the claimant.

We are not suggesting that cross-examination has no value. But it is a tool designed for a truly adversarial process presided over by a judge or neutral arbiter and an independent fact-finder. It has limited value in a typical Title IX investigation, especially when properly trained investigators, who understand their obligation to remain neutral, fair and objective, conduct a thorough and comprehensive investigation.

As former sex offense prosecutors who, between us, have investigated hundreds of cases of rape, sexual assault, child molestation, sex trafficking of minors and sexual misconduct, we have not found that cross-examination causes the repeated victimization of claimants or results in a chilling effect on reporting.

Shame, humiliation, fear, concerns about undue exposure, embarrassment, and the excruciating toxicity of being victimized in the first place are the reasons many survivors of sexual assault do not come forward—not the prospect of someone asking them hard questions. But the hard and probing questions should be asked by fair and compassionate investigators behind closed doors.

Many of the most probing questions will be appropriately directed at the respondent, but the principles of fairness and objectivity must be applied to both parties. Cross-examination may sound good in theory, but in practice, it will do little to advance due process.

Julieanne Himelstein and Mark Ehlers are former federal prosecutors and co-leads of the Sexual Misconduct and Title IX Investigations Practice of Kroll, a division of Duff & Phelps. They can be reached at [email protected] and [email protected].

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