DeVos' Title IX proposal for investigating sexual assault is already policy at some colleges. Hearings are traumatic for both sides.

The email offered the Western Michigan University student what she saw as a no-win choice. She could go to a hearing and let the male students she had accused of sexually assaulting her ask her questions, trying to discredit her. Or she could decline to attend and watch them walk away without any punishment.

"It literally killed my heart," she told the Detroit Free Press. "The need to test me – it was very discouraging to me."

Her choice could become common in the nation's colleges and universities as higher education institutions transform the way they investigate claims of sexual assault, thanks to pending changes in federal rules.

The rules are simply a proposal now from the Department of Education, led by Secretary Betsy DeVos. More than 100,000 comments on the proposal have been left with the department. 

Due to technical difficulties during the public comment period, the department decided to open the comment period for one more day. Comments will be accepted here Friday. 

Experts say it could take months for the final rules to come out, and there's no guarantee the mandate for live hearings with cross-examinations would end up in the final version. However, DeVos is known to favor the hearings.

Even if the rules don't change, schools in states covered by the 6th U.S. Circuit Court of Appeals are mandating the cross-examinations, forced to do so by a series of court rulings, including a landmark one involving the University of Michigan. 

Out is the old way of investigating – the so-called single-investigator model, where a single university employee or outside expert interviews the accuser, the accused and any witnesses separately and then writes up a report. In is a new model where either side can get a live hearing, with direct cross-examination by the parties involved.

More:DeVos draws fire for proposed overhaul of sexual assault rules governing campuses

"Due process requires cross-examination in circumstances like these because it is 'the greatest legal engine ever invented' for uncovering the truth," the 6th Circuit wrote in a September 2018 ruling. "Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence, or potential ulterior motives."

Inside a hearing: Asked to demonstrate position of assault

The Western Michigan University student said the assault happened in September 2017.

Among the questions she was asked at her hearing: What did she talk about with her friends as they met up with the male students who allegedly assaulted her? Had she actually consented to the sex and was just making up her story? What was the conversation in the bedroom before, during and after the assault?

Then she was asked to demonstrate the position she was in when she was assaulted.

The student said she was terrified and unsure about what would happen. But she wanted to see the male students held accountable, so she persevered.

The hearings aren't just stressful for those making the accusation – they are also taxing for those accused of a sexual assault, said Justin Dillon, a former federal prosecutor whose Washington D.C. firm KaiserDillon represents accused students and has handled dozens of hearings.

He warns his clients the hearings are going to be emotional.

"The complainant is probably going to cry," he said he tells his clients, "but don't let that throw you."

Some of his male clients also cry. 

"They are just so overwhelmed," he said. "They have to be ready for it to be very emotional. Crying is fine."

What's not fine is reacting with anger.

"You can't look pissed off," he said. 

More:Students afraid to study abroad under Title IX proposal

'Respectful' but 'traumatizing': How the hearings are conducted

When it came time for her Nov. 8 hearing, the Western Michigan student – whom this article is not naming because USA TODAY does not identify sexual assault survivors without permission  – went to the campus' Title IX offices, located toward the edge of campus.

"We had no idea how the school would orchestrate the cross-examination of my client by the boys who assaulted her," said the woman's attorney, Megan Bonanni. "I felt confident about her emotional state, but I could not prepare her for the process. ... I coached her to maintain her confidence, reminded her that the truth will shine through. She was nervous but confident. The only real anxiety was being confronted by the accused."

The offices included a small conference room and an open reception area.

Getting into the right rooms took time and coordination as university officials tried to handle logistics so the female student wouldn't run into the male students she was accusing in the hallway or reception area.

A consultant was brought in to run the Nov. 12 hearing. Each side was in different rooms. As each side was cross-examined, they were brought into the room with the hearing officer, while the other side watched via video. Witnesses came into the room with the hearing officer and were questioned by the officer and both sides.

The female student was able to be in the room with two female witnesses, while the accused watched and asked questions via video. The two parties switched when the witnesses for the accused were questioned. 

Each side could have a lawyer or adviser with them, but the lawyers couldn't talk during the proceedings to ask questions. Most of the questions had to be submitted in advance; however, follow-up questions were allowed, with the knowledge that the hearing officer could veto any question asked by either side.

While the attorneys weren't allowed to ask questions, they could consult with their clients. The woman's attorney, Bonanni, scribbled questions on notepaper and also whispered into her ear as the female student asked questions. The attorney was not allowed to consult with her client when she was answering questions from the students she had accused.

Throughout the three-hour hearing, documents were referenced and a university attorney would deliver them to each side. That slowed down the pace of the hearing but kept each side separate.

"It was very traumatizing," the female student told the Detroit Free Press a month or so after the hearing. "The questions that they asked me were respectful but painful. I had to attend, or the boys would be found not responsible."

The female student says she was having consensual sex with one male student when another male joined in. She said she did not consent to having sex with him.

The student said the school itself did the best job it could to make her comfortable. "It's just hard to have to answer questions from the people who assaulted you," she said.

Two weeks after the hearing, the female student got another email from the school. This one had encouraging news for her – it had found in her favor, saying the preponderance of evidence showed she had been sexually assaulted.

'There is no better way to test someone's truthfulness'

There's a very simple reason for having hearings, say those who are accused of sexual assault and those who work with them.

"As anyone who’s done even a single trial would tell you, there is no better way to test someone’s truthfulness – regardless of which side they’re on – than through cross-examination," said Dillon, whose law firm has done scores of hearings in many states. "It’s all fine and good to come in with a story, but how you respond when pressed is what really matters."

The challenge is how much to press, and who's allowed to do the pressing.

In most hearings, both sides are limited to asking previously submitted questions, with some allowance for follow-up questions.

Dillon has been in a lot of different hearings. They all seem to have about the same setup: a main room with the panel or hearing officer and some sort of private room nearby for each side. Inside the main room, the setup can vary, including sometimes having some sort of room divider placed between the two sides so they can hear each other, but not see each other.

The hearings often start with opening statements – the accuser often goes first, then the accused. Each side then questions. Then come witnesses. Finally, there's some sort of final statement from each side. 

Lawyers for each side will drill and prewrite statements and questions for their clients. But come time for follow-ups, and it's time to do some quick talking.

“I’m scrambling to write questions so my guy can hand them in and we can get them asked," he said.

Questions are generally thought through beforehand – both those that Dillon's clients are going to ask and those that they are going to answer.

But don't get a picture of students yelling at each other or up in each other's faces.

"There's no meaningful confrontation," Dillon said, adding that hearing officers often soften the questions or shrink the line of questioning. "There are no hard questions. If anything, the panels are super nice to the accuser. Everyone is asked very open-ended questions."

100,000 comments and counting

For most of the nation's universities, a mandate to implement live hearings with cross-examination could still be months away.

Last fall, DeVos proposed rule changes to Title IX to mandate hearings and cross-examination in sexual assault cases. Those rules were then open for comment until Jan. 30. Approximately 100,000 comments were made on the proposed rules, and the education department will have to go through all of them before deciding whether to continue the process of mandating changes.

Dillon isn't surprised most of the comments sent to the education department are negative.

"Accused students simply don’t have the same option to participate publicly in this conversation," his firm wrote in its comments on the rules. "If an accused student is found responsible, people reason, they must have done it. If they’re found not responsible, then many people believe that they did it and the school mishandled the case. 

"If you publicly identify yourself as a 'falsely accused rapist,' most people either won’t hear or will ignore the first two words."   

Dillon's firm is supportive of the addition of hearings.

"No change will do more to ensure that these hearings are fair. In our experience, schools often fail to challenge an accuser’s testimony in any meaningful way. They simply don’t ask hard questions. We have seen far too many cases where, for example, a series of text messages provides strong evidence of the accused student’s innocence – but the investigator or the panel never asks a single question about them."

Schools in Michigan, Ohio, Kentucky and Tennessee  – the states covered by the 6th Circuit Court of Appeals – have to make the changes now, thanks to the court ruling.

That court ruling came out of a case involving the University of Michigan, where a male student sued in federal court. The case centered on a sexual encounter at a fraternity party. The male student was eventually thrown out of school.

The student then sued the university, alleging his due process rights weren't granted. A lower court ruled against him, but he appealed.

His argument was that the university already gave students accused of every other type of misconduct the right to a hearing and cross-examination.

"U-M respectfully submits that the 6th Circuit got it wrong," University of Michigan President Mark Schlissel wrote in a post on UM's website on Jan. 29. "Even as we comply with the current law, we continue to believe that having experienced, fair hearing officers posing questions to all parties and witnesses based on input from both sides is the best way to determine the truth and minimize harm to all students involved."

Follow David Jesse Twitter: @reporterdavidj

If you or a loved one has experienced sexual assault, you can reach the National Sexual Assault Hotline at +1-800-656-4673 or chat online at online.rainn.org.