A Title IX Investigation May Result in a Sex Assault Prosecution

Over the past few years, we have heard some pretty atrocious stories about how Title IX investigators trample the rights of college students. In this blog, we will discuss a story recently told about a student at a Nebraska university who felt forced into making an admission to the Title IX investigator in order to avoid suspension, only to have that info turned over to the Lancaster County Attorney’s Office for prosecution. We’ve seen many elements of this story before and do not need to get into specifics because we have seen this same storied played out in several cases throughout the country.

This Title IX case started off like all others. The young student received a “dear colleague letter” and reported it to the Title IX investigator. The student denied the sex assault allegations and explained that any sexual contact between him and the accuser was consensual. The student did not contact a lawyer because he was worried about his parents finding out.

The student was relieved when he received an email from the Title IX office indicating that the allegations would not require him to leave school. However, as part of the agreement, the student was required to sign a document indicating that he knew or should have known that the accuser was incapable of consenting to the sex act. Like most people, the student assumed that he had signed the document to put the matter behind him and remain in school as a student.

At this point, it is important to go back and note that when the Title IX investigator first contacted the student, she told him that everything in the Title IX investigation was confidential and that it would not be turned over to police. The student believed this, and he believed this when he signed the document admitting to wrong doing, which he felt he had to sign to stay in school. In other words, he signed the admission under the coercion and duress of being suspended or expelled.

Later, law enforcement pursued the case and decided to prosecute the student for sexual assault and the Title IX office turned over all information, including the student’s signed statement where he admitted to actions that would constitute sex assault under Nebraska criminal statutes.

The student did not have a criminal lawyer present during the Title IX investigation because the investigator told him he did not need one. While it is true that the student did not need to have an attorney present, having a criminal attorney present to advise him likely would have prevented a prosecution. The criminal attorney could have explained that the university police can provide information to the prosecutor and that the Title IX investigator will turn over all information to the prosecutor if it is subpoenaed.

The lesson learned is pretty simple. Title IX investigators, just like law enforcement, do not have to tell students/suspects the truth. Police use deception frequently when conducting criminal investigations and often when there is a Title IX proceeding there is a concurrent police investigation. Unfortunately, the Title IX investigator is under no obligation to tell the student about the pending criminal investigation. Furthermore, even a well-meaning Title IX investigator does not have any control over whether the state files criminal charges.

Students and parents of students should know that any Title IX allegation is serious. Not only does the accused student face suspension or expulsion, but worse, a Title IX investigation could be used against the accused in a criminal prosecution. In Nebraska, any sex offense involving penetration is a felony, which carries potential prison time and mandatory sex offender registration.

If you are a student or a parent of a student who has been falsely accused of sex assault, stalking, or any other Title IX violation, contact the Title IX defense and criminal defense attorneys at Berry Law Firm.

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