When can a person accused of sexual misconduct sue the accuser for defamation? Since the #MeToo movement began, more and more people accused of sexual assault have turned to defamation lawsuits as a weapon to combat those allegations. In 2022 Johnny Depp won his defamation claim against his ex, Amber Heard, who had written an op-ed describing herself as a survivor of domestic violence, without naming Depp. (Depp was also found liable for defaming Heard when his lawyer called Heard’s claims a “hoax”). In 2020 a judge found singer Kesha had defamed her former music producer by telling a friend he had raped her; New York’s highest court recently overturned that decision, and the parties settled. A crowdsourced Google spreadsheet of allegations of sexual misconduct against men in media resulted in a lawsuit against the woman who started the spreadsheet, and a six-figure settlement for the plaintiff. Defamation claims in sexual assault cases have gone the other way too; A jury recently found that Donald Trump defamed E. Jean Carroll by calling her sexual assault allegations against him a hoax. In these high-profile instances, defamation suits have become a vehicle to set up a jury to decide whether allegations of sexual misconduct are true. CONTINUE READING ›
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.
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One of several controversial revisions to the new Title IX regulations issued by the Department of Education (DOE) is the change to the definition of “sexual harassment.” The regulations significantly narrow the scope of Title IX’s definition of sexual harassment, making it less expansive than the workplace standard for sexual harassment under Title VII and related state anti-discrimination laws. The DOE has justified this dramatic redefinition of sexual harassment based on concerns that Title IX enforcement has been overbroad and, as a result, has applied to conduct that may implicate free speech and academic freedom concerns. The DOE also supports the revisions by claiming that they clarify and provide more explicit guidance to schools about what conduct constitutes sexual harassment for Title IX purposes. The new regulations may provide more clarity in the most egregious circumstances involving quid pro quo sexual harassment and conduct that constitutes sexual assault, dating violence, domestic violence, or stalking under the Clery Act (the federal law requiring United States colleges and universities to disclose information about crime on and around their campuses). However, the revised definition raises serious questions for complainants about whether other conduct—such as some forms of physical contact, verbal sexual harassment, or gender-based (non-sexual) or LGBTQ-based harassment—will be prohibited under Title IX.
Definition of Sexual Harassment Under Prior Law
Under prior guidance, the DOE defined sexual harassment as “[c]onduct of a sexual nature [that] is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.” This definition broadly included a variety of conduct that could interfere in a student’s ability to participate in school, ranging from physical conduct such as rape, groping, and other nonconsensual sexual contact to verbal harassment.
Cross examination rights in Title IX campus cases have long been hotly contested—both in litigation challenging the adequacy of school sexual misconduct proceedings and in the public debate about how colleges and universities should handle allegations of sexual misconduct. This week’s newly issued Title IX regulations have attempted to find a middle path: they require schools to hold live hearings and permit cross-examination, but only if it is conducted by advisors rather than by the parties themselves.
Until now, the rights of the parties in campus sexual misconduct cases to question each other and witnesses have been highly variable. (Generally respondents accused of sexual misconduct and their advocates have pushed for these rights, while groups advocating for complainants have opposed them, but it’s worth noting that the regulations grant the same rights to both parties.) State and federal courts in different parts of the country have taken sometimes very different positions on whether some form of cross-examination is required under the Constitution, Title IX, or state law, and, if so, what that cross-examination has to look like. In general, the decisions granting such a right have been limited to students of public institutions, who have constitutional due process rights that students at private schools do not have.