One of the most confusing and controversial provisions of the new Title IX regulations is a provision that bars the decision-maker from considering any statement by a party or witness who does not submit to cross-examination at the hearing:
“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.”
This provision imposes a blanket ban on considering statements made outside the hearing if the party or witness does not submit to cross-examination. In real court proceedings, there is an entire body of evidence law that addresses when and how out of court statements can be relied on at trial. For example, in a criminal case the prosecution can often rely on “fresh complaint” evidence (statements a victim of sexual assault made shortly after the assault), whether or not the victim testifies at trial. If parties refuse to testify at trial, statements they previously made that are counter to their own interests can be admitted—which would allow a court to consider an alleged sexual assailant’s admissions or inculpatory statements, and also allow a court to consider any statements a complainant or victim made that suggest any part of his/her account was fabricated or inaccurate. In real court hearings, out-of-court statements are also frequently used not to prove the truth of the statements themselves, but to call into question the credibility of a party or witness. The Title IX regulation indicates that statements made by a party cannot be used even for this purpose if the party does not submit to cross-examination.
How will this work? Title IX investigators, academics, and practitioners have been identifying possible situations where this rule will come into play, with little clarity as to how the situations are meant to be addressed under the rule.
The plain language of the regulation means that nothing the parties have ever communicated—whether in texts to friends, in a medical examination, or even to the Title IX investigator—would be considered if the party does not submit to cross-examination at the hearing. Indeed the preamble to the regulations explicitly states as much: “Thus, police reports, SANE reports, medical reports, and other documents and records may not be relied on to the extent that they contain the statements of a party or witness who has not submitted to cross-examination.” The preamble also states that this provision applies even where the statements of the party who refuses to submit to cross-examination are intertwined (for example in a text message exchange) with statements by parties or witnesses who do submit to cross-examination. In those circumstances, the decision-maker can rely on the statements of the witnesses who submit to cross-examination, but not the statements of those who do not. A number of Title IX attorneys have pointed out that means that even if a respondent has confessed to engaging in sexual misconduct, that confession cannot be considered if the respondent does not submit to cross-examination at the hearing—a logical choice for any respondent who has made incriminating statements prior to the hearing.
The preamble to the rule indicates there is an exception to this exclusionary rule when the decision-maker is the person asking the question. The preamble states “[i]f a party or witness refuses to respond to a decision-maker’s questions, the decision-maker is not precluded from relying on that party or witness’s statements.” This one sentence raises more questions than it answers, particularly because the regulation itself, in describing the hearings schools are required to hold, does not make any mention of the decision-maker being required or permitted to conduct his or her own questioning.
Assuming that under the actual regulation a decision-maker is permitted (though clearly not required) to conduct his or her own questioning, how would the interpretation in the preamble play out? If a party appears for a hearing, and chooses only to submit to questioning by the decision-maker but not to cross-examination, under the language of the preamble the decision-maker is not allowed to consider any of the party’s prior statements. The regulations justify this exception as follows: “cross-examination (which differs from questions posed by a neutral fact-finder) constitutes a unique opportunity for parties to present a decision-maker with the party’s own perspectives about evidence. This adversarial testing of credibility renders the person’s statements sufficiently reliable for consideration and fair for consideration by the decision-maker.” What happens if a party submits to questioning by the decision-maker, refuses to answer a question that the decision-maker poses, and then refuses to answer the same or similar question on cross-examination by the other party’s advisor? For example, consider a case where there is a text message from the respondent to a friend that says “last night I raped Complainant.” If, at the hearing, the decision-maker asks the respondent a question about the text message, and the respondent refuses to answer, under the regulation the decision-maker would be able to consider the statement in the text message. But what if the respondent also refuses to undergo cross-examination, which would prohibit the decision-maker from relying on the text message? Because the regulation itself makes no mention of the decision-maker asking questions, and instead imposes a blanket exclusionary rule where the party does not submit to cross-examination, my interpretation is that once a party refuses to submit to cross-examination the statements remain excluded, regardless of what the decision-maker may ask. However, the president of the Association of Title IX Administrators has read this language in the preamble to indicate that the refusal to answer the decision-maker prevails, so that if a party refuses to answer both the decision-maker and submit to cross examination the decision-maker can consider the prior statement. What if a party refuses to attend the hearing altogether—is that considered a refusal to answer questions posed by the decision-maker, even where it is not clear the decision-maker would have posed questions? There is little to guide schools’ or courts’ interpretations as to how to determine whether statements are admissible if the witness refuses to undergo cross-examination or questioning by the decision-maker.
This post is part of multi-part series by Zalkind Duncan & Bernstein’s Title IX team analyzing the significant revisions to the U.S. Department of Education’s Title IX regulations that were issued in May 2020 and are intended to take effect on August 14, 2020, which can be found here. Links to our other posts in this series can be found here.
If you are involved in a Title IX proceeding at your school, college, or university, and would like to speak to one of our Title IX lawyers about your case, please contact us at (617) 742-6020.