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University Discipline Hearings: Does my accuser have to appear?

We have heard that the government is not supposed to deprive us of "life, liberty, or property" without "due process of law," but, in the context of university discipline hearings, the question is, "what does 'due process' mean?"

One federal appeals court has offered some clarity on this issue this week: if a case is a classic "he said, she said" scenario, the accuser needs to appear for questioning, either physically, or virtually through a video-conferencing service like Skype. This protection is required because, as the court aptly noted, "[o]ne-sided determinations are not known for their accuracy." 

In John Doe v. UC, et al, a Tinder date turned into a sexual encounter, which turned into a sexual assault allegation by Jane Roe against John Doe (pseudonyms used to protect the parties' identities). At the University of Cincinnati's disciplinary hearing, Jane Roe did not appear---meaning that John Doe could not ask her any questions---but the University found him responsible for the sexual assault anyway. Both the trial and appellate courts found that this process was unfair because the only pieces of evidence in the case were the statements of Jane Roe, who said that the sex was not consensual, and the statement of John Doe, who said that it was. There was no physical or forensic evidence.

What does this mean for you, the university student? If you are the accused, at minimum this means that if you are prosecuted for sexual assault by your university, it is very likely (if not certain) that your accuser will be physically present at the hearing, or that your accuser will be available for questioning via a service like Skype. If you are the reporting victim, know that you will likely have to participate in the hearing in some way---you cannot simply submit a written statement and hope to have the other person suspended with your written statement alone.

Many open questions remain: does this ruling apply outside of the sexual assault context? What if the accuser in a "he said, she said" scenario is a police officer that accuses you of something like underage drinking? Will the submission of the police report alone allow the hearing officer to find you "responsible?"

You should seek the advice of an attorney experienced in handling university discipline matters before doing ANYTHING with your discipline case. These cases are often more serious than related criminal cases---you need sound advice!

For those arguing that university discipline hearings need more due process, chalk up Doe v. UC, et al, as a win. 

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