Across the country, colleges and universities are under immense pressure from the general public and the federal government to investigate and swiftly discipline students for sexual misconduct. Unfortunately, this well-intentioned mission to protect women on college campuses from sexual violence has also resulted in a number of male students being branded as “rapists” and kicked out of colleges and universities without the due process and protections they would receive in the criminal justice process. While the college or university disciplinary process does not result in a criminal sentence, the information gathered by the school and the determination by the school can still have lasting implications both in the student’s personal/professional life as well as in the criminal process.
Under Title IX, schools receiving federal funds (which includes most all colleges and universities) must guarantee students an equal opportunity to get an education regardless of gender. This law has been interpreted to require colleges and universities to prevent and deal with sexual misconduct and sexual violence that could interfere with the learning environment of students based on their gender.
Critics of the new federal framework question the requirement that academic institutions (rather than police, prosecutors and courts) determine claims of sexual violence, and they question their expertise to conduct the necessary investigations and adjudications. They also note substantial limitations on the role of counsel, including cross-examination, and the use of a preponderance of the evidence burden of proof, instead of a requirement of proof beyond a reasonable doubt.
If you have been accused of rape or sexual assault on a college campus you should take this process and accusation very seriously. Unfortunately, 20 something year old college kids do not always understand the gravity of this type of accusation and they often fail to consult with an attorney early enough in the process.
Here are a few things to remember if you or your child receive notice of this type of accusation from a college or university.
1. Talk to a lawyer first!
If you have been accused of sexual miconduct on a college or university campus you need to speak to a lawyer as soon as you receive notice of the allegation. Schools will not always advertise that you have a right to the advice of an attorney in this situation, but you do!
The Baylor University Title IX policy states that “the complainant and respondent may each bring an advisor who may accompany them to any meeting or related proceeding, but the advisor may not participate in or disrupt the hearing process.”
Unfortunately, a number of universities and colleges do not allow the attorney representing a student to actively represent their client in the school proceeding. That means the attorney is usually prevented from cross-examining witnesses, presenting evidence or arguing on behalf of the student in the school hearing. But it is still important that you seek the advice of counsel to provide you information about the best way to proceed and how to protect yourself in this process.
2. What you say to school investigators and administrators CAN be used against you in a criminal prosecution (again, talk to a lawyer before making statements or meeting with school officials)
Often times students receive notice from the school to come in and speak to a Title IX investigator about the allegations. Many young students believe if they just cooperate and tell the investigator everything they know that everything will be fine. This is WRONG!! The Title IX investigator is not your friend and any statements you make to that investigator or to other school administrators could potentially be turned over to law enforcement and used against you in a criminal prosecution.
The school investigation is different and separate from the criminal process, but you still HAVE A RIGHT TO REMAIN SILENT!! Baylor’s Title IX policy states that the “University will not draw any adverse inference from the respondent’s silence, but they should be aware that such failure to participate in the investigation may impact his/her case.”
Again, it is best that you evaluate the decision of whether to remain silent or not with an attorney who has experience in this type of situation.
3. Do NOT post on social media about the alleged incident!
Once a student is informed that there is an accusation against him/her, I have seen students respond by posting a frustrated remark on some form of social media about the situation. Again, it is best that you remain silent about the allegations until you’ve consulted with an attorney. And even then, it is usually not a wise decision to post or comment about the pending allegations online in any form.
ANYTHING you post on social media could potentially be taken out of context and used against you in the school investigation or a criminal prosecution. The safest course of action for students is not to delete anything on your social media (which could be miconstrued as tampering with evidence), but freeze it and stop posting for a while for your own protection!
4. Do NOT make contact with the complainant yourself after you learn of the allegation
Accused students sometimes naively believe that if they just try to talk to their accuser they will be able to resolve the problem. This is a dangerous thing to do, and again this type of communication could be taken out of context and used against the student in both the school investigation and a criminal prosecution for witness tampering. Once an allegation of this nature is made, it is best for the accused student to cease contact with the complainant until the situation has been resolved both by the school and in the legal system.
5. Preserve all digital communications with the complainant before and after the alleged incident
School administrators and even the participants in the criminal justice system are reluctant to believe that a complainant would just make up a story–so the accused student often needs to preserve and gather information to attempt to answer that question–“why would a person make up this type of false accusation?” If you’ve been falsely accused, then it is important to preserve any digital communications between you and the complainant that might shed light on this question of why the person might falsely accuse you. You should preserve that information and provide it to your attorney.
On the other side of this issue, if you have information that is incriminating in any form, it is important that you not delete that information because it could later be found or recovered (despite your deleting it) and the destroying of this type of information could result in an additional charge of tampering with evidence. If in doubt, preserve and consult with an attorney about it.