If you’re accused of sexual assault on campus, you should carefully consider engaging an attorney to defend you. Let’s consider the reasons.
I. There is a lot at stake here.
An attorney representing you in a Title IX hearing is your advocate through a serious process that may have significant consequences on your education, as well as other aspects of your life. Your attorney can guide you through this process, as well as making sure that your school properly respects your rights and your best interests (not just those of the complaining witness) throughout the Title IX proceeding. It is not just suspension or expulsion at stake, but other serious and long-term consequences, such as negative effects on your ability to transfer or graduate, or even to get a job or pass a background check after school. The Title IX proceeding will not go away by itself, and you will need an experienced advocate to help you obtain the best possible result.
II. The ED’s agenda.
Under Title IX, the Department of Education dictates that colleges and universities must have a “prompt and equitable” procedure for resolving complaints of sexual harassment or violence. The DOE has also issued informal guidance as to what this procedure should look like, which most universities adopt in order to avoid the revocation of federal funding of all sorts—research grants, financial aid, work-study funds, and countless other types of federal money. However, the ED’s process is notorious for favoring complaining witnesses and failing to afford sufficient protections to accused students. You need an attorney to help you understand what your rights are and how to stand up for them.
III. Your school’s motivations.
Just because your school is conducting the Title IX hearing does not mean your school is on your side. Your school actually has powerful motivations to prioritize your accuser’s interests over your interests. Your school might lose federal funding if its Title IX cases are not handled in a way that satisfies the federal government. However, your school also knows that it could also face significant losses from private lawsuits brought by students whose rights were denied by the institution in a Title IX proceeding. If you have an attorney, this puts your school on notice that you care about the process, have been educated about your rights, and will not allow yourself to be taken advantage of in an unfair proceeding.
IV. The nature of your school’s disciplinary committee.
Even if you have not been formally charged with a crime, your school may still (and probably will) determine that any report of alleged sexual misconduct on campus merits a hearing. This hearing will most likely take place before a disciplinary committee, made up of some combination of faculty, staff, and students, depending on your institution. The purpose of the hearing is not to determine your criminal innocence or guilt, but to assess whether academic consequences are appropriate. The consequences of a Title IX hearing, however, could be much more far-reaching in practice.
V. The standard of proof here is very low.
Depending on your school’s process, the disciplinary committee may find that you committed sexual misconduct by using only a “preponderance of the evidence” standard of proof. This standard is a much lower standard of proof than the one used in criminal trials: “proof beyond a reasonable doubt.” A low standard of proof is dangerous in sexual misconduct cases because often there isn’t much evidence beyond the competing stories of the accuser and the accused. Unfortunately, the ED does not require your school to use a reasonable doubt standard. Even so, your attorney can help you present the best case possible in your defense.
VI. Your legal rights.
Being represented by an attorney for your Title IX hearing is important because he or she can help to challenge the system where it may be abridging your rights. Even if your school does not allow that attorney to be present or ask questions during the hearing itself, your attorney can help you understand what your legal rights are and how to stand up for them.
VII. Bringing to light unfair elements of the Title IX process.
Your attorney can also look out for elements of your school’s adjudication process which can be challenged in a civil discrimination lawsuit. For instance, if you are expelled because of an unfair, biased adjudication process, your attorney can help you petition a court to find that your expulsion was discriminatory and have you readmitted to school.
VIII. The importance of preserving evidence and remaining silent.
Your attorney can also advise you on how to avoid actions or comments that will negatively impact the outcome of your Title IX hearing, and to avoid making costly mistakes simply for lack of knowledge. Generally, you should preserve any evidence that may be in your possession (relevant text messages, emails, social media interactions) from before or during the incident. You should also refrain from any further contact with the complaining witness, as well as from making statements about your case to anyone but your attorney. Do not discuss your case over social media, or vent about it to a friend. As tempting as it is to do these things, this evidence may be used against you later, either in the Title IX proceeding or in court.
IX. The Marshall Defense Firm is here to help.
Our firm has helped numerous college and university students navigate sexual assault allegations, both in court and during Title IX hearings. If you are facing possible disciplinary action from your school, don’t compromise your rights by neglecting to consult an attorney—contact us. For more information, you can also check out our earlier blog post on Title IX hearings.