Most people think of Title IX as an initiative for providing equal opportunities for and ending discrimination against women on college campuses. Title IX, also known as Title 9, covers not only sexual discrimination but also sexual harassment and sexual assault. State universities that do not follow these rules risk losing state and federal funding after a Title 9 investigation. 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 Title 9 investigation is required independent of a law enforcement investigation, as law enforcement involvement does not relieve the college’s obligation to conduct an independent Title IX investigation.
What Problems Can Arise During the Title 9 Investigation Process?
First, a Title 9 investigation generally lacks the due process required in court cases. Often, Title 9 attorneys are not allowed to speak at these hearings, and investigators fail to address evidence that may exonerate the accused. A college student caught in a Title 9 investigation is in a very difficult position because a university investigation carries a much lower burden of proof than “beyond a reasonable doubt” as required by the criminal justice system.
For example, in a criminal sexual assault investigation, law enforcement must establish:
- 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.
Title IX Investigations Use a Lower Burden of Proof
In a Title IX investigation, the burden to establish sexual misconduct is only by a preponderance of the evidence, which means 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 evidence to law enforcement, they generally will turn it over if the information is subpoenaed by law enforcement.
A College Investigation Can Lead to Criminal Arrest and Penalties
Also, if the alleged victim contacts the university to allege a sexual assault but indicates they do not want to press charges, the university should not contact law enforcement. However, if during the investigation, the alleged victim changes their 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, that admission may establish probable cause for a criminal arrest. This is troubling because an innocent student accused of sexual assault for conduct that they believed was consensual may now be arrested.
The arrest can cause problems 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 they may also have to register as a sex offender.
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 they don’t have a Fifth Amendment right to remain silent because the Title IX investigation is only an administrative proceeding and not a criminal process.
What Takes Place During a Title 9 Investigation?
Normally, a student who has been accused of sexual assault will immediately receive a no-contact letter from the university’s Title 9 coordinator indicating that someone 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, they will likely receive a letter from the Title 9 investigator requesting a meeting and a statement. Title 9 investigators will often tell the accused that they may have a support person present during the interview, including an attorney, but the support person will not be able to speak on their 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 investigator, unaware that any 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 9 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 may be 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 expelled from college entirely.
For most parents, a Title IX investigation is a nightmare situation. They send their child off to college only to learn that they have been charged with sexual misconduct by the university, even though law enforcement knows nothing or has refused 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.
Berry Law’s Team Provides You With Multiple Attorney Perspectives
What Is a Criminal Defense Attorney’s Role in a Title 9 Investigation?
Criminal defense attorneys representing students accused of sexual misconduct know their clients are in a very difficult position. The student’s 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 their future.
The defense attorney must walk a fine line of trying to keep their client in school by cooperating with the investigation without putting the client at risk of facing criminal charges. The student is put in a strange position where the investigator is asking the student to prove they obtained affirmative consent for any type of sexual touching or penetration. How do you do that? No consent form exists, 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 not to answer any questions from a Title 9 investigator.
What is The Future of Title IX Investigations?
Sexual assault on college campuses remains a 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 grant more due process to accused students.
If your son or daughter has found themselves at the center of a Title 9 investigation, contact Berry Law today. Call us at 402-466-8444 or complete our online contact form to discuss your legal rights.
