CINCINNATI (AP) — A federal appeals court panel Monday upheld blocking a university’s suspension of a male student who argues he was completely denied his right to confront a female student accusing him of sexual assault.
The 6th U.S. Circuit Court of Appeal’s 3-0 ruling agreed with a federal judge’s 2016 preliminary injunction after the student appealed his University of Cincinnati suspension. He claims his constitutional rights to due process were violated.
Women’s rights groups warn the new interim guidelines will discourage reporting of sexual assaults.
"Procedural due process is a legal right in a case like this, but when a survivor is continually being re-traumatized on campus, it should be a priority that their safety is protected," UC student Kenna Corey said.
Corey said she was assaulted in high school and realized after transferring from Ohio State to UC that she was attending college with her attacker. The experience made her anxious and afraid to be on campus, and although she funneled much of that anxiety into advocacy for other victims of assault, it continues to affect her day-to-day life.
"Every single day wandering around on campus, as I'm walking, as I'm participating in class, as I'm moving and existing, I'm constantly wondering 'Is my perpetrator going to be in my class? Is my perpetrator going to be in the library when I'm studying? Is my perpetrator going to run into me on the street?' And it's absolutely terrifying," she said.
Judge Richard A. Griffin, writing the appeal court’s opinion, said the judges are “sensitive to the competing concerns” in the case and agree UC has a strong interest in eliminating sexual assault on its campus and providing appropriate discipline for offenders.
The University of Cincinnati student referred to as “John Doe” contends he was denied a fair hearing without confronting his accuser, who failed to appear at his university disciplinary hearing. He contends their sex at his apartment in 2015 was consensual, while she had reported it wasn’t. He met the woman referred to in court documents as “Jane Roe” through a dating app.
The court ruling said with the “he said/she said” nature of the case, UC officials needed to provide fundamental fairness to a state university student facing long-term exclusion.
“Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair,” the ruling says. It agrees with the district court judge that the male student has a strong likelihood of gaining a permanent injunction.
He was facing a one-year suspension, and his attorney, Josh Engel, said he currently is enrolled.
“What is most important as the Department of Education reconsiders the guidance provided to schools is the Court’s recognition that due process is in the interest of both the accused and the accuser,” Engel said. “In this case, the court found that the ability to confront one’s accuser is important not merely because it aids in the defense by an accused student, but because it allows the school to better get at the truth of accusations.”
Engel told WCPO this was the first time an appeals court has ruled that a college or university violated an accused student's right to confront the accuser.
UC spokesperson Greg Vehr said university officials are reviewing the ruling.
"The university continues to strive to create the best environment it can for all our students by means of disciplinary processes and proactive efforts on how we can help prevent these events from occurring at all," Vehr said in a written statement. "We are actively working to create a culture of consent."
DeVos’ new interim guidelines allow colleges to use a “clear and convincing evidence” standard in assessing sexual assault claims, which is harder to meet than the Obama-era standard of “preponderance of the evidence.” The rules will be in place temporarily while the Education Department gathers comments from interest groups and the public and writes new guidance.
Corey said she was disappointed.
"Being a survivor is a difficult enough experience, but we live in this culture that constantly refuses to believe survivors of sexual assault and affirm their experiences," she said. "(Universities) need to say that they will step up and that they will believe us and support us and that they will do whatever they can to listen to us, hear our experiences and create change, Not just change that will make them seem better or make their reputation look better but that actually hears out what survivors have been saying on this campus for a long time, which is that we need more support."