Defending Students Against Sexual Assault Allegations
If you have been accused of rape, sexual assault, sexual misconduct, or sexual harassment while enrolled at high school, college, or university, you may find yourself fighting to safeguard your freedom and preserve your academic achievements in dual proceedings. It is no small task. Hire a lawyer who is experienced at defending clients from sexual assault accusations, both in the criminal justice system and during Title IX investigations launched by an educational institution in Massachusetts and Rhode Island.
We have successfully preserved the rights and academic accomplishments of clients accused of sex crimes at area colleges, such as M.I.T., Boston University, College of the Holy Cross, Providence College, and Fisher College. Fearful of somehow undermining the client’s defense at any criminal proceeding, many, perhaps most, criminal defense attorneys refuse to challenge school disciplinary proceedings. We, on the other hand, challenge both – and we do so aggressively. It’s no time, after all, to show fear. That only emboldens an accuser. Forfeiting the only pre-trial opportunity to test an accuser’s memory, challenge her recollections, and attack her credibility is not usually a viable strategy. Worse, ceding academic achievements and waiving future academic eligibility is career crippling. If a jury later acquits the client of all charges, the forfeited academic achievements are likely unrecoverable.
Prosecution by the District Attorney’s Office
If the alleged victim reports the incident to the police, the District Attorney’s Office may initiate a formal criminal investigation into the allegations. The District Attorney’s Office may, or may not, coordinate its investigation with that of the college or university. Should the District Attorney’s Office choose to prosecute the client, the criminal trial will likely occur many months, if not years, after the school’s disciplinary hearing and decision.
If the criminal case is resolved, either by way of a dismissal or acquittal, prior to the college or university becoming aware of the allegations, the college or university may, nevertheless, initiate disciplinary proceedings and punish the student for any alleged transgression of the college’s rules – even following graduation.
Title IX: Sexual Misconduct Disciplinary Proceedings
Colleges and universities, under considerable pressure from the U.S. Department of Education, have begun to “prosecute” allegations of sexual misconduct pursuant to Title IX. The decision of the U.S. Department of Education to coerce private colleges and universities to adopt aggressive, if not militant, procedural policies to address the alleged campus “rape crisis” is unprecedented. It has transformed colleges and universities into quasi-governmental sanctioning bureaus.
Interestingly, some area colleges and universities, such as M.I.T., are embracing their roles as Title IX enforcers, even brazenly promising that they will provide better access and more “just” adjudications for alleged victims of sexual assault than the traditional and time tested criminal justice system.
These colleges and universities, however, refuse to provide students accused of sexual misconduct with cherished Due Process rights, such as the right to active participation of counsel, direct confrontation of witnesses, and calling witnesses. Instead, colleges and universities rely on “well-trained” Title IX investigators to interview witnesses and determine credibility.
Brief History of the Confluence of Title IX & Allegations of Sexual Misconduct
In 1972, President Richard M. Nixon signed Title IX of the Education Amendments of 1972 into law. Title IX states:
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.
Title IX guarantees “equal opportunity” to educational programs and activities at federally funded colleges and universities and, as construed, applies to admissions, treatment of students, and employment. Congress enacted Title IX to prevent federal resources from being used to fund discriminatory practices at colleges and universities and protect students – or those applying for admission – from being discriminated against. See, Cannon v. University of Chicago, 441 U.S. 677, 704 (1979). Title IX applied to the creation and implementation of college and university administration policies. It did not apply to students.
The “Dear Colleague Letter,” of Russlyn Ali, Assistant Secretary for Civil Rights, U.S. Dept. of Education, dated April 4, 2011, radically transformed Title IX from legislation banning administrative discriminatory practices to legislation requiring colleges and universities to prosecute students for any act of “sexual violence,” “physical sexual acts perpetrated against a person’s will,” including rape, sexual assault, sexual battery, and sexual coercion, failure to obtain knowing and voluntary consent prior to sexual relations, and harassment. Without a congressional mandate or authorization or any regulatory-type framework, Ms. Ali notified colleges and universities that they were required to “take immediate and effective steps to end sexual harassment and sexual violence” by “designating an employee to coordinate Title IX compliance, and adopting and publishing grievance procedures,” and implementing “education and training programs.”
In their rush to comply with the “Dear Colleague Letter,” colleges and universities have devised half-baked, unfair, and unreliable procedural protocols to adjudicate sexual misconduct allegations. That the accused students, the very individuals they are entrusted to educate and protect, are academically and summarily executed under these protocols is, unfortunately, of small consequence to these administrations. Showcasing their fashionable “get tough” approach to allegations of sexual assault trumps all other considerations.
Trump Administration Amendments to Title IX Investigations
In August 2020, Betsy DeVos finally released the U.S. Department of Education’s new Title IX regulations and guidelines for colleges and universities investigating and prosecuting allegations of Title IX violations. The new regulations represented a significant departure from the guidelines issued in the “Dear Colleague Letter.” Under the new guidelines, colleges were required to adopt a “presumption of innocence” for the accused and allow equal access to the evidence collected during the investigation, including “sufficient details [such as] the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under §106.30, and the date and location of the alleged incident, if known,” and “sufficient time to prepare a response before any interview.” Most importantly, the new regulations colleges and universities to hold actual hearings into the allegations and allow the accused to retain counsel who will be permitted the opportunity to cross-examine the accuser. See, Title 34, Subtitle B, Part 106, Subpart D.
The new regulations also limited the jurisdictional reach of Title IX. Title IX prohibits discrimination on the basis of sex in education programs and activities of colleges and universities that receive federal financial assistance. See 20 U.S.C. 1681(a). Under the Trump Administrations guidelines, “[a]t the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed.” Title 34, Subtitle B, Chapter 1, Part 106, Subpart D, Discrimination on the Basis of Sex in Education Programs or Activities Prohibited, §106.30 (Definitions). For purposes of jurisdiction, “‘education program or activity’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” Title 34, Subtitle B, Chapter 1, Part 106, Subpart D, Discrimination on the Basis of Sex in Education Programs or Activities Prohibited. §106.30 (a). “‘[E]ducation program or activity’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” §106.44 (a).
Unfortunately, by limiting the jurisdiction of Title IX, the Trump administration liberated colleges and universities, when investigating allegations of off-campus sexual offenses, from the very protections it had insisted these institutions afford accused students and professors. As a result, colleges and universities have been investigating and prosecuting allegations of sexual offenses under their student misconduct codes, which often offer few procedural safeguards to the accused. Indeed, some colleges and universities do not even hold formal hearings into the allegations of violations of student misconduct codes, denying the student any recognizable means of defending himself. And, where the colleges and universities do hold hearings, the hearings often do not permit the accused student any right to cross-examination.
Biden Administration Expected to Roll Back Protections for Accused
The Biden Administration, under U.S. Secretary of Education, Miguel Cardona, is expected to significantly downscale the protections afforded to accused students and expand the definition of discriminatory behavior to include “discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation and gender identity.”
The Biden Administration’s amendments to the Title IX regulations will likely be released in 2022.
Fighting Back
An accused student may be procedurally disadvantaged, but he can mount effective defense if he is smart, strategic, and refuses to be bullied. While colleges and universities often demand that the accused student submit to a pre-hearing interrogation by the appointed Title IX investigator, no student is actually required to participate in the investigation, provide a written statement, or answer any questions. Most colleges and universities allow a student to submit a formal response to the allegations. A student can a use well-crafted, tactical response to attack the allegations and detail his defense.
We are, nevertheless, very good at preparing students for Title IX investigator interviews. The interview provides a unique opportunity to combat the allegations and influence the course of the investigation and, ultimately, the outcome. For example, the investigator will begin his investigation by interviewing the accuser. During that initial interview, the investigator will likely only gather basic information, perhaps some details, and the identities of any witnesses – rather than challenge the accuser’s account of the alleged incident. After interviewing the accuser, the investigator will likely interview the accused. It is a mistake to presume that the investigator is competent and objective. The accused must do more than simply answer the investigator’s basic questions. The student must give a chronological, compelling narrative that includes the exact details of the encounter(s), references to corroborating documentary evidence, such as text messages, the names and contact information of witnesses, and any other evidence that casts doubt on the accuser’s credibility, such as the motive behind her false allegations. Following the investigator’s interview of the accused, the investigator will reinterview the accuser and, now armed with the accused’s details of the encounter, is well positioned to challenge the accuser with the evidence that exonerates the accused.
Importantly, the investigator will include the statements of both the accuser and the accused, together with any statements from witnesses, and exhibits, in the final report, which will be provided to the panel that will determine the accused’s academic fate. This report will shape the panel’s impressions, dictate the course of any hearing, and greatly influence their decision.
Retaining Counsel
Identifying and retaining a competent attorney may be critical to saving a student accused of sexual assault from the academic abyss and defending him against any ensuing criminal charges. If you have decided to retain counsel, do so as early in the process as reasonably possible. College and university investigations are completed relatively quickly. The student may have only days to devise a defense strategy, interview witnesses, craft a written response or submit to an “interview” with a Title IX investigator.
If you or a loved one is accused of sexual misconduct on a college campus, call us at 617-492-0055 at your earliest convenience. We want to get right to work.
