Under federal law, when sexual harassment or sexual assault is reported on a college or university campus – the colleges and universities are empowered to investigate and resolve the complaints of sexual harassment and sexual assault involving their students under Title IX. When those complaints are founded, schools have the power to expel the offending party putting a permanent notation on their academic record that can follow that student the rest of their life.
As is the case in any proceeding, school officials will finish gathering evidence and interviewing witnesses and – will close their investigation, deciding in favor of one of the parties – leaving the other party dissatisfied with the result.
When that happens, the dissatisfied party can request that the school hold a hearing where they attempt to show why the investigation’s finding was wrong. When that happens, it becomes necessary to examine—and cross-examine—witnesses.
Cross-examining a hostile party might be the single most difficult task someone faces in these kinds of proceedings. In our experience, good examination requires two things:
- Preparation: In order to know what questions to ask, you need to know what happened. This means:
- Knowing how to track down witnesses, convincing them to speak up and give statements, and having the attention to detail to ensure the investigator or review panel doesn’t miss important details.
- It will likely include pouring through social media and other digital evidence.
- Reviewing medical evidence like trauma medicine, forensic pathology, toxicology, and neurology. They can also include other forensic evidence like DNA.
- Understanding the psychology of how sexual assault victims appear and act, how to properly interview them so they explain themselves well, and how to minimize the chances they will choose to drop their claims in order to avoid the hearing itself.
- Experience doing examinations: Proper cross-examination is a dynamic skill set to explain and impossible in a single paragraph. But a competent advocate has to know how to question someone on:
- What they remember exactly; distinguishing the difference between what they remember and what they have seen, heard or absorbed from an outside perspective such as friends, family members, news outlets and other witnesses.
- The consistencies in their statements and the consistencies between different witnesses’ testimony
- Their vantage point—like what they could see or hear from where they stood
- How the parties acted in response to what happened: continuing to text or speak to others versus appearing sad and downtrodden are all relevant to figuring out what really happened
- How the parties or witnesses might be biased in favor of or against others: anyone involved may have reasons to selectively report or omit details to get back at others or help themselves
- And doing all of this in such a way that a review panel at a hearing hears the information the examining party needs to come out, not what a witness wants them to get.
If all this sounds like a criminal trial, that’s because it very nearly is. As the current regulations stand, the parties themselves handle the cross examination during the hearing. Should the Department of Education implement the new proposed regulations, parties to these hearings will be allowed to have their attorney conduct the cross examination. For now, an attorney can help prepare the parties for both the giving and taking of testimony.
As mentioned above, these hearings have real implications. Sanctions in these proceedings can include expulsion and notation on your permanent record. This can remain with you for the rest of their life and will come up in every hiring decision where a prospective employer requires your transcript.
The attorneys at Winslow & McCurry, with their backgrounds in both defense and prosecution, have the experience of investigating, developing, and trying life-altering cases—including cases involving sexual assaults.
If someone you know is the victim of a sexual assault and needs assistance trying his or her case before a campus tribunal or if you know someone that has been accused and is facing a hearing, contact our attorneys today at info@wmmlegal.com or (804) 423-1382, and we can help you plan and prepare your case before an administrative panel. We want to help.
