TITLE IX: IMPLICATIONS FOR THE ACCUSED

When someone is accused of campus sexual assault, law enforcement officers often conduct criminal/civil investigations at the same time as school investigations. According to federal law, universities and colleges that receive federal funding are legally obligated to address sexual assault incidences under the terms of Title IX (“Title 9”) of the Education Amendments of 1972. K – 12 schools have the same obligation under Title VII. This means someone accused of a campus rape could face both legal and disciplinary consequences.

For several reasons, campus investigations into school rape accusations (as well as accusations of sexual harassment and discrimination) sometimes take place confidentially, and legal charges don’t come into play. Recently, the U.S. Department of Education released a 2017 Interim Guidance document to provide additional descriptions of how the department expects schools to proceed when someone makes school rape accusations.

Because campus sexual assault and Title IX complaints can become complicated, those accused often consider seeking the advice of a sex crimes attorney early in the process to support a strong defense. A lot can happen between the initial accusation and the time of an administrative hearing or trial. Sex crimes attorneys at Berry Law Firm have extensive experience assisting with this type of sexual assault case. We are available to listen to your story.

But first, you might want to understand Title IX complaints and their implications for those who are accused.

WHAT ARE TITLE IX SEXUAL ASSAULT COMPLAINTS?

Title IX is a federal civil rights law under the Education Amendments of 1972, which prohibits discrimination based on sex in any educational program or activity that receives federal funding (most schools and colleges, but also museums and libraries, and some other programs).

The section of the amendments applicable to campus rape accusations is brief, but powerful:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Even though the text of the law doesn’t specifically name sexual assault or sexual harassment, decisions from the Supreme Court and the U.S. Department of Education have given the law a broad scope. In other words, Title IX covers sexual harassment and sexual violence as forms of sex discrimination.

A complainant can file a complaint under Title IX with their school or with the U.S. Department of Education’s Office of Civil Rights (OCR), which enforces the law. Complainants can also file a private lawsuit even if they don’t make a formal complaint with the OCR. They are not required to make a police report about the incident.

Once a school is alerted to (or reasonably should have known about) sexual harassment or sexual assault accusations on campus, the school’s designated Title IX coordinators are legally obligated to promptly investigate the complaint and protect its students. The school must investigate the incident regardless of whether a law enforcement investigation is underway, because the school’s obligation is not dependent on law enforcement involvement. The school must act no matter what.

The school’s failure to conduct an independent investigation can result in loss of state and federal funding and the potential for the complainant to bring a private suit against the school if the complainant does not consider the school’s response to be “prompt and effective” in ending the harassment and preventing it from reoccurring. Under the law, the school may be made to pay the victim’s damages.

TITLE IX UNIVERSITY RAPE ACCUSATIONS AND THE ACCUSED

The Title IX process can result in serious considerations for the accused. The amendment is designed to protect all students from discrimination, including both survivors of a campus rape or harassment/discrimination and the accused. However, recent media attention on colleges and their obligations have led some administrators to treat the accused person as guilty with little due process.

If you or your student are facing campus rape accusations, you need to know:

  1. This type of accusation and its consequences can be complex.
  2. Title IX responsibilities can result in false allegations that nevertheless result in serious consequences before a person is proven guilty, including school suspension and potential expulsion from degree programs.
  3. School administrators sometimes have failed to protect the rights of the accused.
  4. The accused person cannot assume a school will support and defend their rights as diligently as they support the accuser.
  5. It is illegal for anyone, including the accused and friends or family, to retaliate against the complainant.
  6. The school can take disciplinary action against the accused even if the legal prosecution is pending or has been dismissed or charges have been reduced. The person accused can be suspended or expelled regardless of the result of criminal or civil proceedings.
  7. Sometimes schools discourage students from seeking legal counsel, but some advocates believe those accused should act quickly in hiring a criminal defense attorney who can protect their rights.

TITLE IX COMPLAINT PROCESS

Every educational institution that receives federal funding for education must have a coordinator who enforces compliance and deals with reports and complaints. At the University of Nebraska–Lincoln, for example, the on-campus Title IX coordinator is required to conduct an “impartial and neutral” investigation into the incident.

This generally involves interviewing both parties and witnesses, examining evidence, determining whether a violation occurred, and recommending appropriate sanctions. Sanctions on the accused range from placing a formal written warning (a “no contact” letter) in the student’s file to banning them from the university or barring them from specific activities. Staff-specific sanctions apply to an accused person who is a school employee.

After sending the accused the initial no contact letter, a school’s Title IX coordinator generally also will:

  1. send another letter requesting a meeting and a statement from the accused
    advise the accused that they may have a support person present during the
  2. meeting – the support person cannot, however, speak on the accused’s behalf during the interview

Sometimes, but not always, university investigators will show the accused a copy of the complainant’s statement. In some cases, the accused student goes into the investigation meeting unaware that the statement they provide to the school administrators could result in suspension, dismissal, and even criminal charges if law enforcement obtains the statement. Some investigations occur on campus before law enforcement’s involvement, but others occur at the same time.

TITLE IX SEXUAL ASSAULT HEARINGS

The next step in the school’s investigative process usually is a school administrative hearing into the matter, which also can present significant challenges for the accused.

  • The school will use a lower standard of proof than criminal courts. Most school hearings under Title IX ask for proof that the crime did not occur, which is the opposite of criminal cases where prosecutors bear the burden of proving a criminal case beyond a reasonable doubt.
  • Attorneys are often not allowed to speak at hearings, and investigators often fail to address favorable evidence the accused presents.
  • A school will generally turn over the sexual assault investigation to law enforcement if the information is subpoenaed. All of this puts the person facing school rape accusations in a difficult position.

The criminal defense bar recently scrutinized Title IX investigations due to the lack of due process. The Trump administration believes the 2011 “Dear Colleague Letter” from the Obama administration substantially lowered the burden of proof required for college administrators to determine whether alleged sexual misconduct occurred on campus.

The letter states: “Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation.” This means college administrators, and not judges and juries, hold the power to decide the fate of an alleged perpetrator. As a result, universities are expelling students based on inadequate investigations and the careless attitudes of school administrators.

Education Secretary Betsy DeVos argues that stripping college administrations of the power to decide a case not only protects the accused, but also the accuser because a fair trial is based on a higher burden of proof. Proposed process changes will, however, take months, possibly years. In the meantime, some accused persons have been suing schools for not upholding their rights. Read more about school Title IX investigations here.

THE ROLE OF A SEX CRIMES ATTORNEY IN UNIVERSITY RAPE ACCUSATIONS

The first priority of a defense attorney with campus rape accusations is to prevent the accused from being arrested. The next priority is keeping the student in school. The attorney informs the student of the severe penalties involved, and many advise clients to not answer questions from the school’s Title IX investigator, because their statements can be used against them.

If you or a loved one is facing school rape accusations, contact the experienced Title IX defense attorneys at Berry Law Firm.

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