Title IX lawsuits are on the rise. Law suits are being filed by both the
accused and the alleged victims claiming schools are failing to protect
their rights. A recent article published in the ABA Journal discussed
the reason for the increase in the lawsuits (click here to see a recent article published in the ABA Journal).
Many young men and their parents feel that during Title IX proceedings,
the accused’s life is being destroyed without a meaningful opportunity
to challenge the allegations. Rape allegations adjudicated through Title
IX hearings may affect the accused’s ability to complete his or
her education and obtain a career in a chosen field. Unlike Title IX,
due process of law is clear in state and federal courts. People charged
with crimes and other misconduct are protected by federal and state constitutions,
laws, and procedural rules. These laws and procedural rules protect both
the accused and the alleged victim.
For example, an alleged victim in a sexual assault case is protected by
a rape shield law that prevents the accused from bringing up the alleged
victim’s prior sexual conduct unless it is to prove source of injury
or source of semen or bodily fluid. However, the accused also has several
protections, such as the presumption of innocence, the right to remain
silent, and the right to effective assistance of counsel. Most importantly,
the government bears the burden of proving the case beyond a reasonable doubt.
Victims of sexual assault have also taken issue with the way schools implement
Title IX protections. Victim lawsuits are on the rise because victims
who report the sexual assault or harassment on campus feel the school
has failed to take appropriate action. Recently, one of Berry Law Firm’s
attorneys met with New York attorney Carrie Goldberg (link to her website:
http://www.cagoldberglaw.com/), who represents victims in Title IX cases.
Goldberg sues schools who fail to provide students with the protections
required under Title IX. Goldberg holds schools and universities to the
standards required under Title IX when the schools fail to protect victims.
Advantages and Disadvantages to Title IX Proceedings
The advantage to the Title IX system is that it allows an alleged victim
to file a complaint without having to go through law enforcement, keeping
the complaint private. This is similar to the US military’s method
of dealing with sexual assault cases in that the victim of the sexual
assault has access to resources and treatment without making the assault public.
Unfortunately, when it comes to administrative actions, such as Title IX
proceedings, both the alleged victim and the accused often feel that the
process is unfair or unjust. As Title IX lawsuits make their way through
the court system, students who were sexually assaulted voice concerns
about having to relive a traumatic experience that they had worked hard
to put behind them. Many have received counseling and treatment to get
back to living the lives that they want to live.
The falsely accused feel they have been dragged through the mud and “set-up”
because they were not given adequate opportunity to fight fictitious allegations.
In some lawsuits, the accused demonstrated that exculpatory evidence,
or evidence proving they were innocent, was never considered by the university.
In many cases, not only have the accused been kicked out of a school that
they worked extremely hard to earn acceptance, but their record has been
permanently damaged. The results of the Title IX hearing will prevent
them from getting into a graduate school or landing the career that they desire.
The University System and Student Constitutional Rights
Schools teach young adults about our judicial system and our constitutional
rights. Unfortunately, administrative proceedings such as Title IX can
distort both the victim’s and the accused’s perception of
the justice system.
One possible explanation for the rise of Title IX litigation is in the
confusion regarding “consent.” In many instances, the accused
student is in a dating relationship with the alleged victim and is engaging
in consensual sexual touching. The consent issue often arises when the
acts go from sexual touching to sexual intercourse. In many Title IX cases,
text messages and social media posts verify whether the accused and the
alleged victim were in a relationship prior to the alleged assault. What
becomes difficult to determine is which conduct was consensual and which
Lawsuits arise when students and their parents either have not done enough
to protect the victims or when the accused feels railroaded by a Title
Title IX and Abusive Relationships
In some instances, the accused presents evidence through text messages
or social media of an ongoing consensual physical relationship, but victim
advocate groups fire back that the repeated sexual acts were the result
of an abusive relationship where the victim felt coerced.
There is certainly evidence that men and women tend to stay in abusive
relationship. However, the university setting does not fit the model for
the environment in which continuous abusive relationships persist. Generally,
when victims tolerate an abusive relationship, the victim and the accused
have children together, live together, or the victim is financially dependent
on the accused and feels as if he or she cannot leave the relationship.
These factors are not likely to be found in Title IX cases.
In Title IX cases, the alleged and the accused usually do not live together.
In most cases, they live in separate dorm rooms on campus, neither is
financially dependent on the other, and they don’t have children
or any other obligations that make them believe they must stay together.
Furthermore, college campuses have frequent breaks (like holidays, winter,
spring, and summer breaks) when individuals can leave for brief periods.
In short, the college environment does not provide the dependent scenario
associated with long-lasting abusive relationships where the abused feels
he or she cannot leave the relationship.
If you or your child is in the midst of a Title IX investigation, please
contact Berry Law Firm today.