Contributed editorial written by Alex Stalvey
On campus sexual assault has been something that has been on the radar of parents, students and college administrators for years. The growing problems of date rape and non-consensual sexual activity between students had become a national epidemic and in 2011, the U.S. Department of Education issued a “Dear Colleague Letter” to college officials which required them to institute more stringent policies in addressing on-campus sexual assault allegations. Failure to do so would result in federal funding being pulled under Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in education.
Whether the “Dear Colleague Letter” had any impact on reducing on-campus sexual assault is a subject of debate. What is not debatable is the effect the “Dear Colleague Letter” has had on those accused of on-campus sexual misconduct. After the 2011 directive, universities were now required to follow certain procedures in addressing a student’s allegations of sexual misconduct. As you could probably imagine, these policies were not favorable to the accused. Based on my own personal involvement in the defense of these allegations, those accused of on-campus sexual misconduct are often model students with high GPAs and no prior disciplinary issues at their schools. They come from different socioeconomic backgrounds. Some rely completely on scholarships and financial aid to pay for tuition. The allegations that we must defend are almost always a “he said, she said” situation with no corroborating evidence. As any criminal defense lawyer (or prosecutor) will tell you, this is common to all sexual assault cases. Unlike other crimes, there are no video cameras or eyewitnesses that may have seen or recorded the incident.
DISADVANTAGES TO THE ACCUSED IN TITLE IX PROCEEDINGS
The difficulty in defending these allegations in a Title IX proceeding is primarily due to the policies and procedures adopted by universities as a result of the 2011 “Dear Colleague” letter. While students accused of on-campus sexual misconduct face life altering consequences that include expulsion, suspension, loss of scholarships and housing, they are not afforded basic due process rights others would have the advantage if facing similar allegations outside of the university setting.
1.) Not having the right to have a lawyer present during any interview or during the hearing procedure;
2.) Not having the right to review the statements of the person making the allegations or having the right to cross-examine the accuser during the hearing process;
3.) Not having the right to subpoena evidence or witnesses to attend the hearing;
4.) Being prohibited from interviewing other witnesses with relevant evidence or information that may be helpful to defending the allegations;
5.) Facing a preponderance of the evidence standard as opposed to the beyond a reasonable doubt standard afforded to criminal defendants; and
6.) If involved, a lawyer is not allowed to speak during any interviews or during any hearings and is not allowed to directly address anyone involved in the procedure. All communications (verbal or written) must come directly from the student.
The most common sexual misconduct allegations involve one or both parties using alcohol and/ or drugs. A Title IX violation is usually determined to have occurred anytime a student engages in sexual activity with another student whose ability to consent is impaired due to the use of drugs and/or alcohol. Impairment includes “incapacitation” which does not mean gross intoxication. “Incapacitation” is typically defined as a state of mind which impairs an individual’s physical or mental ability to make informed and rational judgements.
The accused may not use “incapacitation” as a defense. Therefore, if both parties are unable to make informed and rational judgements due to their voluntary use of drugs and/or alcohol, the accused is still responsible for determining the other party is unable to consent.
The definition of “incapacitation” along with other university policies on sexual misconduct put students in a position where they must not engage in sexual activity after having consumed any alcohol whatsoever. When this situation occurs, either student has a legitimate argument that a Title IX violation has taken place, but it is the student that is accused of such violation that must face the consequences of a formal investigation and hearing process, while the equally guilty accuser is considered the victim and escapes all liability for their own conduct.
BEST PRACTICES IN DEFENDING ALLEGATIONS
In defending a student against these allegations, your primary objective is to convince the hearing panel that the allegations are false while also doing two very important things: 1.) protect your client in the event any future prosecution is initiated and 2.) preserve the record for future civil litigation against the university.
Universities are not required to record interviews or take written statements from the accuser or witnesses that have been provided to corroborate the allegations. It is important to first determine whether the interviews will be recorded and if a transcript of those interviews will be provided to the accused. If the interviews are not being recorded, it is important to provide a detailed written statement from the accused to ensure the accuracy of his or her version of the events. Any written statement provided by the accused should adequately address the allegations but also avoid any detail that may be later lead to credibility issues if a criminal prosecution is initiated. It is also important to identify all witnesses that may corroborate significant events leading up to and taking place after the incident. In a case involving lack of consent due to “incapacitation”, it is important to identify witnesses who may have seen either party prior to the sexual encounter that could provide any details as to their level of intoxication. If the accused appeared to be sober and able to make rational decisions at a party that took place the night of the sexual encounter, witnesses that can corroborate this fact must be interviewed and included in a witness list for the hearing panel to question. This includes any witness that may have information on the amount of alcohol consumed by either party.
False allegations can be attributed to several circumstances. The accuser may have a boyfriend or girlfriend that they have cheated on and an allegation of being drunk during the sexual encounter may excuse such behavior. A student may be embarrassed by his or her conduct and pressured into making a false allegation to avoid being judged or labeled by friends familiar with the situation. Every effort must be made to identify individuals and conduct that could have impacted the accuser into making a false allegation.
If the university’s policy does not include recording witness statements, it is the responsibility of the student to record or provide written statements from these witnesses to be considered by the hearing panel. Unfortunately, without any subpoena power, gathering this information and making it available to the investigators and hearing panel is completely dependent upon the cooperation of the witnesses with the accused.
Any records that may be helpful to the defense should be requested in writing from university officials. If the student making the allegations claims to have been “incapacitated”, the accused should request any video surveillance showing the conduct of either party when entering their dormitory or other campus building where the sexual encounter may have occurred. Key card records may establish a timeline that is different than what has been presented in the allegations. Text messages exchanged or sent by one making the accusations to close friends may reveal that the sexual encounter was consensual and establish that the accuser later changed their version of events to fit a sexual misconduct allegation.
Keeping detailed records of any interviews or requests for interviews further protects a student against future prosecution. It is helpful to have a clear, detailed record of all efforts to speak to key witnesses. If those witnesses refuse to cooperate with the investigation, it is important to be able to establish that the accused made every effort to gather this information immediately after the incident and that any refusal or resistance to those efforts have prejudiced the defense.
During the hearing procedure, a student must be prepared to give a statement which clearly expresses his defense of the allegations. It is important to properly prepare the student to provide this statement and to respond to questions that are likely to be asked by the hearing panel. A lawyer may be present at the hearing, but will not be allowed to address the hearing panel or question any witnesses that provide testimony. The accused student and lawyer must prepare questions for each witness to be asked and be ready to amend any questions or responses as necessary during the hearing.
Students are usually not comfortable discussing these issues. The only way to get them more comfortable is to go through the questioning and their statement multiple times until they reach a level of confidence that will not be shaken by the pressure that the hearing procedure will create.
In the event a student is expelled, suspended or experiences some other adverse consequence as a result of a hearing panel’s decision in a sexual misconduct proceeding, civil litigation against the university is an option. The defense of any on-campus sexual assault allegation should also be designed to best protect the student’s claims in pursuing any future claims that may be available.
As mentioned above, keeping detailed written records of all correspondence and interviews will be helpful in pursuing a claim. It is also important that the university be put on written notice of the policies and procedures mandated under Title IX. The policies and procedures under Title IX were updated as recently as September, 2017 and are provided on the U.S. Department of Education’s Office for Civil Rights website.
Written notice to the university should be made upon first learning of an investigation of on campus sexual misconduct.
Notice should include the following:
1.) A request and acknowledgement by the university that the student will be afforded all of the rights articulated in directives issued by the United States Department of Education’s Office of Civil Rights. If the university’s policies and procedures depart from those directives, an explanation should be provided for the student’s review;
2.) A clear explanation as to the burden of proof which will be used by the hearing panel and which party is responsible for establishing the burden of proof;
3.) A request for all training materials provided to investigators and adjudicators in the case including how many sexual misconduct proceedings the adjudicators have been involved in and the number of times these individuals recommended a finding that a student was “not- responsible”. If the accused is a male, these records should include findings specific to gender and will allow the accused to determine if there is any bias toward male students which would potentially result in the accused not receiving a fair and impartial investigation and hearing as required by the Department of Education Office of Civil Rights directives; and
4.) The existence of any informal resolution process which complies with the Department of Education directives as provided in its 2017 Q and A on Campus Sexual Misconduct, p. 4, which provides: “If all parties voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process, the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.”
Students facing these allegations are at a significant disadvantage and need the advice of an experienced attorney to protect their best interests in these cases. It is possible to obtain a positive outcome in these situations, but the rules that universities have adopted make it an uphill climb. With proper preparation and a thorough investigation early in these cases, students improve their chances of success before the hearing panel and can possibly set themselves up for an informal resolution that will minimize the impact of these allegations on their college career.
Protecting the record, preserving all correspondence and communication and providing written notice to the university provides a student advantages in subsequent civil litigation while also protecting them in any future criminal prosecution. It is important to make the student aware these collateral consequences and remedies early in the case and do everything necessary to best protect them if either of these situations arise.
Protect your client in the event any future prosecution is initiated and preserve the record for future civil litigation against the university.
Written notice should include…