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 misconduct cases.
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.