What happens if you are accused of sexual misconduct on a college campus, or any school which receives funds from the federal government? Lately in the media, there have been many stories of sexual misconduct at universities and many college campuses. Some stories report on alleged victims who have not been given justice, and other stories report on incidents when the accused was not given a fair and just hearing.
What is the truth?
According to the US Department of Education website, “Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities (hereinafter “receiving any Federal funds must comply with Title IX. Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.”
The truth is that Title IX policies are poorly designed to handle the complex legal issue that is a sexual assault allegation. The administrative procedures under this federal law do not provide individuals with the due process protections afforded by the criminal justice system. Here, we will break down the process that most Title IX claims go through, how they might be best be handled with the aid of an experienced attorney, and we will also explain how the differences from criminal proceedings.
In Title IX cases, an incident allegedly occurs; typically, the incident is a claim of sexual assault or similar misconduct. The accuse makes a report directly to campus police, a student conduct office, or to any college official or employee. If reported to campus police, a criminal investigation is initiated. In this case, the allegation leaves the school’s oversight and is taken over by the local police. We will discuss this option later.
If the misconduct is reported to the student conduct office or any college official or employee, an investigation is opened. The school’s investigator will provide the complainant with information and resources, discuss the complaint, obtain a statement, and any additional information about the incident. The investigator will then coordinator to meet with the respondent (accused) to obtain statements and any additional information from that individual.
An investigation usually lasts from 30 to 90 days. A final report will be provided to both the complainant and respondent for their review. If the investigator states that there is a preponderance of evidence supporting the allegation of misconduct, the accused is now faces an administrative process to determine how to act on this alleged violation.
At this point, the respondent (another term for the accused person) can then ask for a hearing before a board which will consider evidence to determine if the respondent engaged in any misconduct and, if a finding of misconduct is made, to determine what disciplinary action or sanctions are to be imposed. The hearing usually consists of the complainant and respondent giving statements, and the board members making the determination. The disciplinary action can range from expulsion to lesser sanctions.
The burden of proof for Title IX sexual assault cases in schools is preponderance of evidence; that is, the decision of the board will depend on what the members of the board believe is supported by a majority of the evidence. This is contrast to a criminal case in which the burden of proof is the highest burden, known as beyond a reasonable doubt. Though the consequences of a finding of guilt at a Title IX proceeding are often much less than the possible consequences of a criminal conviction; e.g. Title IX proceedings do not result in jail time or sex offender registration, the Title IX proceeding can mean not only loss of enrollment at the college of one’s choice, it often results in the loss of the respondent’s ability to attend any school or receive financial aid in the future.
Title IX proceedings are often conducted concurrently with criminal investigations. This is true regardless as to whether the allegation was made directly to campus police. A criminal investigation is a long and strenuous process. It will begin with the complaining individual giving a statement to an officer or detective and then the officer possibly having the individual examined at a hospital.
The detective will attempt to contact the accused student to obtain a statement. If you are in this position, NEVER give a statement to a detective without first consulting with an attorney. This is never a matter in which you can “talk your way out of it.”
The detective will usually file an arrest warrant after he wraps up his investigation. The accused will be arrested, if he does not turn himself in, and post a bond. It is the best course of action to have an attorney working for you well before this has happened.
Once a bond is posted, it is important to start gathering evidence for your defense. The case will get filed in the appropriate county, and it will then be followed by the presentation of an indictment for consideration by a grand jury. Your attorney may then choose to present a grand jury packet in hopes of obtaining a NO-BILL on your case.
If the case is in fact indicted that means that those grand jury members decided that there is enough evidence, known as probable cause, to make a “True Bill”, which simply means the case will now be decided in a district court. The case will then have a first appearance in court followed by several appearances until a disposition occurs in your case.
Allegations of sexual misconduct are difficult and quite scary to anyone, no matter how innocent of the allegations. That is why it is important to hire an attorney at the initiation of an allegation to get a start on your defense. If you are ever faced with a sexual assault case or any criminal case on a college campus, or any school, the Law Office of Patrick J McLain PLLC to get the help you need. We will immediately start working on your defense!