Most people think of Title IX as an initiative for providing equal opportunities
for and ending discrimination against women on college campuses. Title
IX not only covers sexual discrimination, but also sexual harassment and
sexual assault. State universities that do not follow Title IX risk losing
state and federal funding. This threat has led to the creation of the
position of Title IX compliance officer, who handles grievances in sexual
Title IX requires universities to take immediate action upon receiving
notice of sexual assault or sexual harassment. A college investigation
is required independent of a law enforcement investigation, as law enforcement
involvement does relieve the college’s obligation to conduct an
independent Title IX investigation.
The Problem with Title IX Investigations
Title IX investigations generally lack due process. Often, attorneys are
not allowed to speak at Title IX hearings, and investigators often fail
to address favorable evidence presented by the accused. Any college student
caught in a Title IX investigation finds him or herself in a very difficult
position because a university investigation carries a much lower burden
of proof than that found in the criminal justice system.
In a criminal sexual assault investigation, law enforcement must establish
that either sexual contact or sexual penetration occurred, the victim
either did not consent or was not capable of consenting, and, if the victim
did not consent, the defendant knew or should have known the victim was
not capable of consenting.
In a Title IX investigation, the burden to establish sexual misconduct
is a preponderance of the evidence, which means evidence that proves it
is more likely than not that the sexual assault occurred. Additionally,
while the investigators will indicate that they are not required to turn
over Title IX investigation to law enforcement, they generally
will turn it over if the information is subpoenaed by law enforcement.
If the alleged victim contacts the university and alleges a sexual assault
but indicates she does not want to press charges, the university should
not contact law enforcement. However, if during the investigation, the
alleged victim changes his or her mind and reports the matter to law enforcement,
law enforcement may subpoena university records, which may include the
accused’s statement to the Title IX officer.
This is problematic, because in most sexual assault investigations, if
a defendant admits to having consensual sexual contact or intercourse
with the alleged victim, the admission may be sufficient to establish
probable cause for an arrest. This is troubling, because an innocent student
accused of sexual assault for conduct that he or she believed was consensual
may now be arrested. The arrest is problematic on several levels. First
it creates a public record which often alerts the media of an arrest.
More importantly, the accused student faces not only a felony conviction
and prison time, but also sex offender registration.
Most criminal defense attorneys encourage their clients not to submit to
an interrogation by the Title IX officer because if the victim goes to
law enforcement, any statement the defendant gave to the Title IX officer
could be used in court if subpoenaed by law enforcement. This is true
even though the Title IX officer will likely tell the student that he
or she doesn’t have a fifth amendment right to remain silent because
the Title IX investigation is an administrative proceeding.
What Takes Place During a Title IX Investigation?
Normally, a student who has been accused of sexual assault will immediately
receive a no contact letter from the university’s Title IX coordinator
indicating that the complainant has alleged a sexual assault and that
the accused may not have any communication, verbal or non-verbal, with
the complainant. This includes text messages, phone calls, emails, and
social media posts. Shortly after the accused receives a no contact letter,
he or she will likely receive a letter from the Title IX investigator
requesting a meeting and a statement. Title IX investigators will often
tell the accused that they may have a support person present during the
interview, but the support person will not be able to speak on his or
her behalf during the interview.
While some investigators will show the accused a copy of the complainant’s
statement, others will not. Accused students often go to these meetings
with the Title IX investigator unaware that the statement they provide
could result in suspension, dismissal, and even criminal charges if law
enforcement gets involved and obtains the statement. In some cases, the
Title IX investigation occurs prior to law enforcement’s involvement,
and in other cases, it takes place concurrently.
But isn’t the Title IX process supposed to be fair?
The process is probably fair for the victim, but not for the accused. In
a recent San Diego case, a female student accused a male student of improper
sexual touching. The male student had evidence that the female student
had sex with him both before and after the alleged sexual assault. The
university did not allow the evidence at the administrative hearing, even
though the complainant admitted that she and the male student had consensual
sex both before and after the alleged sexual assault. Regardless, the
male student was found guilty of sexual misconduct and suspended for one
semester. In more serious cases, students have been dismissed from college entirely.
For most parents, this is a nightmare situation. They send their son or
daughter off to college only to learn that their child has been charged
with sexual misconduct by the university, even though law enforcement
has either not been informed or has declined to prosecute the case. Many
parents and students are fighting back, and Title IX lawsuits have been
filed in federal and state courts throughout the country.
What Is the Criminal Defense Attorney’s Role?
Criminal defense attorneys representing students accused of sexual misconduct
know their clients are in a very difficult position. The first priority
is preventing an arrest, and their second is staying in school. The criminal
defense attorney must educate the student about how a felony conviction
or placement on the sex offender registry could destroy a student’s future.
The defense attorney must walk a fine line of trying to keep his client
in school by cooperating with the investigation without putting his client
at risk of facing criminal charges. The student is put in a strange place
where the investigator is asking the student to prove he or she obtained
affirmative consent for any type of sexual touching or penetration. How
do you do that? There is no consent form and in real life people don’t
obtain verbal consent for every possible form of physical contact during
sex. For this reason, many criminal defense attorneys advise their student
clients to not answer any questions from a Title IX investigator.
The Future of Title IX
Sexual assault on college campuses remains serious problem. Title IX prosecutions
have yet to prove effective in reducing sexual assaults on campus. Several
factors such as immaturity, drug or alcohol use, and peer pressure complicate
sex in college. Schools have a duty to take precautions to protect their
students, but the due process rights and the futures of the accused are
being compromised. Fortunately, state and federal lawsuits continue to
mount, which will likely change policies and procedures in the future
to allow for more due process for accused students.
If your son or daughter has found themselves at the center of a Title IX
investigation, contact Berry Law Firm today.