If you have been accused of rape, sexual assault, sexual misconduct, or sexual harassment while enrolled at a 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.
We have successfully preserved the rights and academic accomplishments of students and former students, as well as tenure for professors, 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.
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.
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 pre-hearing 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.
The accused student is, of course, permitted to testify at the disciplinary hearing. If the college or university protocol requires the destruction of the video/audio recordings following the adjudication of the charges, it may be worthwhile for the student to testify in his own defense – if he is capable of withstanding the pressure and adequately prepared. We are very good at preparing students to testify.
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, and closely followed by the disciplinary hearing. The student may have only days to devise a defense strategy, interview witnesses, and craft a written response.
Attorney Mahoney is currently authoring The Title IX Sexual Harassment Handbook, which should be published in 2017. In his new book, Attorney Mahoney recommends aggressively defending students accused of sexual assaults, and adopting proven techniques, tactics, and stratagems. He has successfully defended hundreds of students, including an individual accused of rape and sexual assault at M.I.T. and a student accused of rape at Providence College – both investigated under Title IX. He is available to represent those accused of sexual assaults and/or harassment at all Massachusetts, Rhode Island, and New Hampshire colleges and universities, including Harvard University, Brandeis University, Tufts University, Northeastern University, and Boston University.
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.