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Back to School: Criminal Defense & Title IX Sexual Misconduct

It’s Back to School month. Parents will be having some serious conversations with their children as these young adults embark on their first year of college or begin another year of studies: “Work hard and watch your grades!” “Be smart.” “Don’t drink and drive (and that includes your bike)!”  But in the criminal defense context, navigating the university system can present it’s own challenges.

It’s an unfortunate reality that educating young adults about sexual harassment and violence on campus is also high on a parent’s list these days. And this conversation usually doesn’t come as a surprise to most young adults. The national #MeToo movement is calling needed attention to sexual harassment and assault, and the news is constantly abuzz of high-profile politicians and celebrities who have been accused of sexual misconduct or assault. But what many students are not aware of are the range of legal rights and responsibilities afforded to them while they attend college.

Title IX provides students on campus with some very important protections against sexual violence. But the same rules that protect those students alleging sexual misconduct can heavily impact those students accused of sexual misconduct. Every year, I get at least a few sexual assault defense cases in my Fort Collins law practice. Here are some important things that all Colorado State University students should know as they dive into campus life this fall–whether it’s related to a sexual offense, or not.  Read on for tips about how to navigate the university disciplinary system!

What is Title IX?

Title IX (of the Education Amendments of 1972) refers to the federal laws and supporting court cases that prohibit sexual discrimination in schools receiving funding from the federal government. It’s also the law requiring parity in men’s and women’s sports, which is what most people are familiar with. The additional provisions of Title IX require colleges like CSU to respond to allegations of sexual misconduct and remedy these situations, or risk losing federal funding.

But the manner in which schools respond to these allegations under their Title IX obligations is far different than law enforcement’s response. Victims of campus sexual misconduct or violence don’t have to report the allegations to the police. Instead, they can leverage the school’s internal operating procedures to investigate and remedy the complaint. Indeed, colleges and universities are often quicker, more draconian, and less likely to modify the remedies put in place to address allegations than the criminal system.  What’s more–universities don’t wait to impose sanctions until you have been convicted in criminal court.  They do their own thing, which can include immediate interim sanctions without notice or a hearing.  Often, there is no “innocent until proven guilty” in the university admin context.

What does Title IX mean for someone who has been accused of misconduct?

A university’s Title IX investigation and resolution procedures can facilitate a voluntary, informal resolution between the accuser and the accused. But often, a full investigation occurs and an adjudicatory process is used to determine responsibility for allegations of sexual misconduct or violence. While these procedures require facts and evidence, and can involve witnesses, all of this happens outside of the criminal justice system. For a number of reasons, this can be very problematic for those who have been accused of misconduct.

First of all, the university officials involved in these adjudications are making major, life-changing decisions concerning the rights and future educational opportunities of the accused. Potential sanctions include having to move, having to drop out of or change classes, or even being expelled from the institution permanently.  You could lose you tuition, be disciplined after the drop-deadline for your classes, and could be forced out of university housing at great cost.

Second, whereas in criminal harassment and assault cases the prosecutor is required to prove their case beyond a reasonable doubt, college Title IX investigations don’t require as much of a showing to find and assign guilt. In fact, the U.S. Department of Education recently provided guidance to universities that would allow these organizations to use a more stringent standard for determining whether an assault took place. But most schools have indicated their intention to stick with the more relaxed standard.  CSU, for example, requires merely a preponderance standard (tipping the scales in their favor, more likely or not, or 50.1% likely that this offense occurred).

Finally, the student accused of sexual misconduct or violence isn’t guaranteed legal representation in the on-campus hearing, even though the contents of that meeting can be used in a future criminal case. An accused also doesn’t have a right against self-incrimination, so there’s no “I’ll take the 5th” declarations in these hearings. There is a lot on the line during these hearings and most accused students are on their own. BUT, you don’t have to be!

Involving a criminal defense attorney in Title IX proceedings

While administrative hearings don’t look like normal criminal defense proceedings, having an attorney involved in this process can make a huge difference. An attorney can give an accused student advice prior to the hearing and can even mitigate the damage by negotiating acceptable probationary terms and the overlap between the Title IX complaint and a criminal charge (to avoid repetitive consequences). An attorney can also be present during the hearing, which helps if the administrative hearing decision needs to be appealed.  At CSU, you can bring a “support person” to the hearing, who can be an attorney, a parent, or any trusted advisor–but not another student.  The attorney is prohibited from participating directly in the administrative hearing, but we can interrupt proceedings if we need to speak to you in private.  Attorney-client privilege still does apply in the administrative context.

Fort Collins’ premiere criminal defense firm: Let Justie get Justice for you

If you have been accused of sexual misconduct or violence on campus, the first step is to contact a Colorado criminal defense attorney for advice. These issues are just as serious as criminal charges even if such charges haven’t been brought against you.  You wouldn’t go to criminal court alone, would you? An attorney can help mitigate damage to your reputation, education, and pocket book. An attorney can also defend you if the matter becomes a criminal case. Call me at (970) 670-0738 to schedule an initial consultation or click here to schedule an appointment directly.