Deeper Title IX Learning: Are Respondent Admissions Inadmissible if the Respondent Refuses to Testify?

By: Brett A. Sokolow, J.D.

The following Q&A is reprised from a recent conversation with a client.

Q: Dear Brett, I have a Title IX complaint where the complainant has produced evidence, in the form of text messages, in which the respondent admits to the policy violations of which he is accused. The text messages are contemporaneous to the alleged sexual assault. Our investigators have confronted the respondent with the text messages, and on advice of counsel, the respondent is not going to participate in the investigation or hearing. Under the new regulations, am I able to use these text messages as evidence?

A: Dear Client, it depends on what specifically is alleged. If the allegation is sexual assault, the answer is no. If the respondent does not agree to submit to cross-examination at the hearing, none of the respondent’s prior statements are admissible, including those made during an interview, or even earlier, such as text messages. While not all texts will be statements, as admissions, these are. I know that many Title IX lawyers who are accustomed to hearsay rules will find this baffling, but there are bright-line admissibility rules in the Title IX regulations that work differently than federal hearsay exceptions. The Title IX regulations also speak to the respondent’s failure to participate, saying that you cannot draw a negative inference solely from the respondent’s failure to participate in the hearing.

Q: Client: I suppose the word “solely” leaves some room to rely on something else, but what would that be?

A: Dear Client, I think the regulations are silent on that. I wonder if an argument like this might be used? Let’s agree that the statements cannot be relied upon by your hearing decision-makers, per the regulations. However, let’s assume that the complainant (also well-advised by legal counsel) testifies at the hearing that the complainant received text messages from the respondent, admitting to the sexual assault, but that the complainant is barred from sharing those messages or testifying to their specific contents. Thus, the respondent’s statements are not in evidence, but a statement from the complainant about those statements is. Could your hearing decision-makers now say that they are not relying solely on the silence of the respondent, but also on the credibility of the complainant about having received these texts? The argument would be that the texts are not being introduced for the truth of the admission, but for the complainant’s opinion that they contained admissions. Would that be enough to go on? That the respondent made statements, but the substance of those statements cannot be relied upon.

That seems like splitting a very narrow hair to me, but the weighting of evidence is up to your decision-makers, not to me. Are they entitled to know that the respondent is refusing to testify to suppress a potential admission, even if the content of that admission cannot be introduced? Please keep in mind that with the order of testimony, the complainant goes first. If they testify as to the content of the text messages, and then the respondent later refuses to submit to cross-examination about them, the decision-makers will have heard, but now have to disregard that testimony. I’d guess the respondent’s advisor will work hard to make this clear pre-hearing, in the hopes that the chair will rule that the complainant cannot testify about the content of the text messages, in advance. Still, the panel can and must disregard what it has heard.

Also, keep in mind that the complainant will have asserted non-consent to the sexual activity, and the decision-makers will have no denial of that allegation from the respondent on the record (as the respondent is refusing to testify). Thus, the outcome may rely entirely on the credibility of the complainant and any other testifying witnesses or evidence that is not a statement by the respondent.  

Q: That may be too narrow a hair to split for me, too. At least, it’s too sophisticated to train our decision-makers on, I fear. Any other ideas?

A: Well, OCR did clarify through its OPEN Center that in sexual harassment allegations, the actual communication of sexually harassing conduct must be admissible, otherwise the respondent’s refusal to testify could itself suppress the content forming the basis of the complaint. Thus, while your complainant is alleging sexual assault, if they also alleged that the text message content admitting to the assault was a communication that was sex-based, unwelcome (because traumatic, triggering, etc.) and that it was severe, pervasive, and objectively offensive, that could make the text messages admissible as potential sexual harassment. Whether they are only admissible as they relate to the sexual harassment allegation and cannot be relied upon for the sexual assault allegation is unclear. Nothing in the regulations addresses this at all. But, this evidence likely does get past a dismissal and gets the text message evidence in front of your decision-makers. How they rely upon it is up to them.  

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