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What Happens if the SANE Can’t Attend the Title IX Hearing?

By: Brett A. Sokolow, Esq., and Ryan Thompson, Esq.

On the Association of Title IX Administrators (ATIXA) listserv recently, Title IX experts Brett Sokolow and Ryan Thompson had the following exchange in response to a member question about what would happen in a Title IX hearing if there was evidence from a Sexual Assault Nurse Examiner (SANE) who did not attend the hearing. We thought this exchange might be illuminating:

The Original Question: Complainant receives a SANE exam in a Title IX case. The investigator interviews SANE nurse for investigation, matter goes to hearing, but the SANE is unavailable to attend hearing. Confirming this would mean the SANE records (created by the SANE nurse) could NOT be considered in the hearing because no there is opportunity for cross-examination of the SANE nurse by the parties? In addition, confirming statements provided by complainant to the SANE and statements provided by the SANE to the investigator could NOT be considered for the same reason?

Ryan wrote: Not sure how I feel about any Complainant statements made to the nurse, which the nurse quoted in the SANE report. Is that a Complainant statement, or the nurse’s statement about the Complainant’s statement? Probably the latter, I suppose.

Brett responds: It doesn’t matter, because the complainant can re-testify to it at the hearing, making it admissible. 

Ryan: Right, but could the Complainant then provide the portion of the SANE report that quotes her from when she made that same statement to the SANE nurse, perhaps to boost the credibility of such statement, and that portion of the SANE report be considered admissible? 

Brett replied: It’s not admissible as authentication from the SANE that she said it.

Ryan: That was my thinking as well. But as I continue to play with hypos here: So, the Complainant obviously can testify to what she told the SANE nurse, but we can’t admit into the hearing the writings of the SANE nurse that quote the Complainant during the SANE exam. 

However, all if this was discussed and seen in the Investigative Report. And at the hearing, the Respondent also wants to bring in the Complainant’s statements the SANE nurse quoted in the SANE report, because the Respondent actually thinks those statements help their position.

Both the Complainant and Respondent want the SANE nurse’s quotations from the SANE report introduced. Now, if the parties agree that the credibility of the SANE nurse is not at issue, can we bring in the nurse’s statements without her participation? 

Brett: I do like your clever mind, Ryan. So, I think this is how to do it…I did this for a hearing a few weeks ago and am also doing it for the hearing I have on Friday. At the pre-hearing meetings, we agree on which witnesses will be called and which will not. I then get the parties’ agreement that if they don’t want a witness called, they are assenting to their testimony coming in, and not challenging the credibility. Thus, the witness is not not participating, but is not invited to. As a result, there is no suppression of their evidence, and the decision-makers can rely upon it. 

Ryan Thompson: Alright, good. I just hate the idea of excluding evidence that only the Regs “want” excluded and would assume the courts would feel similarly. I like the “not not participating” agreement between the parties.

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