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Defending against Title IX sexual misconduct charges: What students, parents need to know

Defending against Title IX sexual misconduct charges: What students, parents need to know

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Patrick Kilker

Title IX charges are pursued aggressively by colleges and universities across the country. A Title IX allegation has the potential to ruin a student’s academic future and should not be taken lightly. Although these proceedings are quasi-criminal in nature, they actually afford students far fewer criminal rights than would be had in an actual criminal case. Students who do not take the necessary precautions when facing one of these allegations run the risk of ruining their personal and academic futures. 

While no college student is expected to know what to do when accused of a crime, understanding the basics of the process, what rights are guaranteed and what first steps to take can be the difference between being proved innocent or losing one’s academic career. 

Background of Title IX and university proceedings 

Under Title IX, any school or university that accepts federal funding is prohibited from having any form of sex-based discrimination in their educational programs. This includes sexual misconduct and harassment claims, which can range anywhere from stalking and inappropriate language to sexual assault and rape. Recent changes implemented by the Department of Education have resulted in most schools and universities having disciplinary procedures that favor the victim’s claims.  

The first step in any Title IX case is when the original report is filed along with the victim or schools’ intent to follow through with disciplinary action. Most schools have some sort of Student Relations office or a Title IX coordinator who will field the original complaint. However, it is important to note that even if a victim does not want to pursue any sort of disciplinary action, the school can still continue with an investigation and hearing despite their instruction not to do so. 

If either the school or the victim wishes to go through with the case, respondents will usually get a notice either through email or phone from their university’s Title IX coordinator that they have been accused of sexual misconduct, and that there will be a preliminary investigation of the situation. Unfortunately, these coordinators do not have the proper legal experience and knowledge to fully explain what the student is being accused of or what rights they will have at the investigation and hearing. This immediately puts many respondents on the back foot as many laws have passed recently that have afforded more rights to those accused, which may not have been properly conveyed over a short call or email. One of the most important of those rights is the right for a student to have legal representation with them during the investigation process and at hearings. 

While each school handles investigations differently, the investigation process consists generally of interviews and taking statements from both the accuser and the accused, as well as fielding witness testimonies. Should the investigator find a likely policy violation, they would then relay that information to the school’s administration, who would then request a hearing in front of a panel of staff and deans.  

Things to keep in mind during the investigation process and hearing 

While the process may seem straightforward, much of this information may be overwhelming for students to handle at a moment’s notice. Many students hope the situation blows over and choose to not act. This is the single worst pitfall a student could fall into should they be accused of sexual misconduct. Should a student find his or herself in this position, they should reach out to their family and seek experienced counsel immediately. While these issues are not settled in a traditional court of law, the stakes are just as high. As unfortunate as it may be, many students across the country have their reputations, academic careers, and future employment opportunities stripped away due to not taking these accusations seriously. 

While it may seem difficult should one be in this position, there are many ways to defend and advocate for oneself during the investigation and hearing process. Most importantly, should one be requested to speak about this matter in any capacity, they can, and should, respectfully decline until they exercise their right to consult with an advisor. Furthermore, if one does choose to speak, be mindful of what is said, as anything said during the investigative process can, and most likely, will end up being used against oneself during the Title IX university proceedings, as well as potentially in criminal court. This is why consulting with one’s parents and legal advisor is so important. Considering this process moves fast, many students try to take on this burden by themselves and end up incriminating themselves in the process. 

Prior to speaking with investigators, students who are being charged with Title IX allegations should speak with their representatives and determine what evidence is out there. Names of witnesses who have heard or seen parts of the alleged incident or are familiar with the relationship between the accuser and accused may end up being very important at a proceeding. In addition, text messages, voice mails, even records of telephone calls may end up being extremely important.   

Another thing to look out for is whether or not one’s hearing panel consists of unbiased judges. As mentioned previously, schools do not have any requirements to have anyone with courtroom experience sit as a judge in these hearings, often having panels consisting of university staff and deans. Those staff could have preconceived notions about the party or any of their characteristics, which could make it almost impossible for those untrained to obtain any sort of favorable outcome. Further, the standard for proof is much lower during a college’s Title IX proceedings than in a criminal court. Unlike in a traditional court where the standard for guilt is “beyond a reasonable doubt,” in a college hearing it is only a mere “preponderance of the evidence.” What this means is that it is much easier for the accuser to prove the respondent’s guilt. Without a proper strategy and evidence to counter that which was brought up by the accuser, one would likely find themselves guilty, regardless of their innocence. 

With stakes this high, don’t go it alone 

There are many pitfalls students need to be aware of when responding to Title IX accusations. With the consequences ranging from expulsion to loss of future employment opportunities, it is worth giving oneself every advantage. By knowing what schools are looking for and how they apply Title IX, one can gather the requisite evidence necessary to winning these otherwise difficult cases. 

With more than 20 years’ experience practicing law, Patrick J. Kilker, Esq. is a partner in the Binghamton office of Tully Rinckey PLLC, where he focuses his practice on Criminal Law. Patrick has extensive criminal defense experience and has handled over a thousand cases from inception through appeal. He can be reached at [email protected] or at (607) 722-1520.