Check Some of Your Rights at the Door in a College Disciplinary Hearing

Students accused of campus sexual assault face not only a police investigation of the allegations but an inquiry by the college itself as required by Title IX federal law. The result can be a minefield of legal hazards for the accused as they navigate an investigatory process where fundamental elements of fairness are often lacking.

I drew attention to this issue in the case of Harvard Law school, here, and it has been highlighted elsewhere, including here and here.

Now a recent case has emerged that further illustrates the particular risks faced by someone accused of campus rape.

In a recent column entitled “Making Title IX Work,” Inside Higher Ed describes the case of a University of Wisconsin student accused of raping his roommate’s girlfriend. The student denied any wrongdoing to the police, but in a university disciplinary hearing he later expressed regret for what had occurred in what Higher Ed described as “an apparent attempt to receive a lesser punishment.”

No details have emerged concerning what the student was specifically expressing regret about. Nonetheless, according to Susan Riseling, the chief of police at Wisconsin, the version of events he presented during his hearing was “in direct conflict with what he told police.” As a result, police subpoenaed the records of the proceedings and used them as evidence against the student.

The issue that arises here is that the school, unlike the police, is not required to provide a Miranda warning as part of their investigation. Nor, for that matter, are they even required to notify students in their sexual assault guide that the police can use the disciplinary proceedings to obtain information (the University of Washington’s guide does not – see below*).

As a consequence, the accused may unwittingly make statements to a Title IX investigating officer or during the college disciplinary hearing that can later be used against them in a court of law.

In a Title IX disciplinary procedure, if a student refuses to respond to the investigating officer or waives their right to the disciplinary hearing, they are left with the determination of the Title IX investigating officer. In the case of a sexual assault allegation, this could mean expulsion.

The result is a Hobson’s choice for the student. As Ashe Schow describes it:

“This presents an impossible situation for accused students, who must waive their 5th Amendment rights in their only chance to avoid expulsion.”

We have very few details regarding the Wisconsin rape case. Nonetheless, it provides valuable lessons regarding the high-stake risks faced by college students accused of sexual assault.

If you’re a student who has been accused of a campus rape, it’s critical that you find legal counsel that is experienced defending against sexual misconduct allegations and familiar with Title IX disciplinary procedures. Before speaking to the police or school investigators. Your college future—and maybe even your freedom—may very well depend upon it.

* Information for those alleging or accused of sexual misconduct at the University of Washington in Seattle and its regional campuses can be found here. The UW Student Conduct Code can be found here, and details describing UW disciplinary hearings for alleged student misconduct here. On June 30, 2015, the Student Conduct Code was updated with additional provisions regarding sexual misconduct. Those provisions can be found here.