Sexual Misconduct Defense

What is Sexual Misconduct?

Universities and colleges will define sexual misconduct using specific and precise language. No two definitions will be identical. Sexual harassment and sexual assault are often included under the definition of sexual misconduct. Any kind of unwanted sexual attention, activity, or contact may fall under the definition of sexual misconduct.

Also, sexual misconduct may occur when an individual engages in sexual contact with someone who is incapacitated or unconscious. Sexual misconduct happens when an individual cannot provide consent. An individual may consent to a specific sexual encounter, but not provide consent to other sexual acts. An individual may also revoke consent at any moment.

The consequences of sexual misconduct charges can alter the course of your life. Not only is your academic future at risk, but your professional future will suffer as well. If you are accused of sexual misconduct, you must take advantage of your right to due process. Defending your reputation and your social standing is imperative.

Universities and colleges painstakingly investigate and pursue all claims regarding sexual misconduct among students, faculty, and staff. Oftentimes, students are not provided with the time or resources they need to develop a defensive strategy. Many of these students may face expulsion, academic suspension, and other penalties without asserting their constitutional rights.

Dealing with accusations of sexual misconduct is emotionally overwhelming. You may be afraid, angry, and perturbed. It can be difficult to know how to interact with university or college representatives after you have faced allegations of sexual misconduct. Educational institutions often place more pressure on a student who is accused of committing sexual misconduct.

However, sexual misconduct allegations can be overcome if you know the procedures and policies associated with your institution’s investigation of sexual misconduct cases.

Sexual Misconduct and Title IX

All sexual misconduct cases are not Title IX cases. Significant changes to the law occurred under the Trump administration and the leadership of Betsy DeVos. These changes altered Title IX guidance, and this affects how sexual misconduct cases are processed by universities and colleges. Numerous universities and colleges have instituted different procedures and policies as a response to these changes. Students who are accused of sexual misconduct may find themselves dealing with these new procedures and policies. Retaining a student defense lawyer can provide you with clarity regarding these matters.

Title IX: The Basics and How It Has Changed

Title IX must be understood in the context of its legislative purpose, which was to regulate how universities and colleges receiving federal aid handled sexual misconduct claims and sexual harassment claims. As part of the Education Amendments of 1972, Title IX is federal law.

Purpose of Title IX Law

One purpose of the law is to help students who have suffered discrimination on the basis of sex. Any student who feels as if they are discriminated against on the basis of sex can file a Title IX complaint. The range of behavior Title IX applies to has broadened over the years since it was enacted by Congress.

Title IX is not a part of the Model Penal Code or any state penal code. Any college or university that receives funding from the federal government falls under the purview of Title IX. The vast majority of universities and colleges in the United States receive some form of funding from the federal government.

Universities and colleges do not want to risk losing their federal funding by not complying with the mandates of Title IX. The educational institutions are often acting out of financial self-interest when they are conducting Title IX investigations. Many universities and colleges are forced to conduct investigations with limited resources, and oftentimes sanctions are imposed without providing an accused student with time to assert their due process rights.

The Obama Administration and Title IX

Title IX was enacted in 1972. Congress has not altered the substance of the law since that time, but it has influenced how Title IX is enforced and interpreted across the United States. Sometimes these differences in interpretation arise depending on which political party is in power. Many changes occurred when President Barack Obama was in office.

Dear Colleagues Letter

The Obama administration intended to provide greater protections for victims of sexual misconduct. In 2011, the “Dear Colleagues Letter” was released. The rules outlined in this letter created additional restrictions that made it more difficult for individuals accused of sexual misconduct to defend themselves against their accusers.

The “Dear Colleague Letter” was intended to influence how universities and colleges investigate and review sexual misconduct claims made under Title IX. The following changes are relevant to those involved in Title IX sexual misconduct claims:

Educational institutions were forced to create and implement programs that would decrease the occurrence of sexual assault on college campuses throughout the United States. The institutions were also tasked with educating students, faculty, and staff on the causes of sexual assault.

  • Educational institutions began to use one Title IX investigator who would be assigned by the institution’s Title IX office to conduct the Title IX investigation.
  • An expansion of mandatory reporters who are mandated to report instances of sexual misconduct to the institution’s Title IX office.
  • A general consensus that cross-examinations of complainants, and live hearings, would not be encouraged by educational institutions.
  • Sexual misconduct as defined by Title IX swelled to include online behavior as well as verbal statements such as sexual comments and sexual content posted online.
  • Educational institutions lowered the standard of proof to a preponderance of the evidence standard, which made it more likely that complainants would prove that respondents were found to have committed sexual misconduct.

The changes instituted by the letter were well-intentioned, but they caused Title IX offices to push cases through without performing complete investigations. If an educational institution did not perform the tasks outlined by the Dear Colleagues Letter, they would suffer financial detriment.

Those individuals who were falsely accused of sexual misconduct suffered due to these changes. Some students were dismissed or expelled in as little as sixty days with no reasonable opportunity to assert their legal rights.

Title IX Changes in 2020

Title IX underwent changes after Donald Trump was elected President of the United States. New guidance was released by the Department of Education on May 6th, 2020. The new rules were made effective in August of 2020. These changes were designed to create a more equitable system that would allow respondents the opportunity to assert defenses if they were accused of sexual misconduct. The following changes to Title IX went into effect in 2020:

  • A more specific definition of sexual misconduct. What qualifies as sexual misconduct under Title IX was limited. The following three categories constitute sexual misconduct:–  Stalking, domestic violence, dating violence, and sexual assault–  Trading favors for sexual contact–  “Unwelcome conduct so severe, pervasive, and objectively offensive that it denies someone equal access to education”
  • Universities and colleges now are only responsible for pursuing Title IX sexual misconduct allegations for incidents about which they had actual knowledge, not constructive knowledge.
  • Educational institutions received new guidelines regarding off-campus activities. Universities and colleges now must exercise “substantial control” over an area before they can begin performing Title IX investigations regarding sexual misconduct. Fraternities and sororities are under the school’s investigation power, but other off-campus housing units do not come under the educational institution’s jurisdiction.
  • One investigative procedure for educational institutions to use when investigating sexual misconduct accusations.
  • Mandatory cross-examination of witnesses and hearings during sexual misconduct cases. If a witness does not wish to participate in a hearing their testimony cannot be admitted.

Do Title IX Changes Benefit the Accused?

These changes should not give students accused of sexual misconduct the right to not worry about a Title IX investigation. Every university and college in the United States can alter how they conduct Title IX investigations. These institutions adapt to make their policies adhere to their views regarding Title IX investigations. Colleges and universities will act in their own self-interest to preserve their funding and their reputations.

Title IX policies are always in flux. An individual school’s policies regarding Title IX are unique and specific to that institution. Students facing sexual misconduct allegations may be dismissed or expelled and not have the opportunity to defend themselves.

Sexual Misconduct Under Title IX and Criminal Charges

A frequent question that arises during Title IX sexual misconduct cases concerns the possibility of criminal charges brought by the state. Sexual misconduct is often a crime under the majority of states’ penal codes. Sexual assault and rape are charges that may overlap with the conduct scrutinized during Title IX sexual misconduct cases.

However, approximately 80% of college students facing sexual misconduct charges are not charged with crimes by the state. Although it is possible to face criminal charges, the likelihood of a student facing criminal charges is low.

Students are not likely to face criminal charges because complainants prefer to file complaints against the university or college rather than before a judge, prosecutors, and police officers. Also, under the criminal justice system in the United States, offenders are innocent until proven guilty, and this evidentiary standard does not apply in Title IX sexual misconduct cases. Therefore, complainants are more likely to file a Title IX claim. The burden of proof is lower in a Title IX sexual misconduct case.

Risks of Sexual Misconduct Allegations

Being accused of sexual misconduct can affect an individual’s life for decades. It can lead to various outcomes as follows:

  • Disciplinary action by the college or university, including dismissal and expulsion, can damage your academic career.
  • Also, you may lose several years of academic credit and tuition.
  • A student who is found to have committed sexual misconduct may lose out on scholarships, employment, and internships.
  • Students may also be unable to gain admission to another university or college.
  • Some students will be barred from participating in on-campus groups while the Title IX investigation is ongoing.
  • Even if the student is determined not to be responsible for sexual misconduct, the stigma of an investigation can affect that student’s social standing and ability to move forward with their life.

The Importance of Retaining a Student Defense Lawyer

Attempting to handle a Title IX investigation on your own will expose you to risks that can damage your academic career and your future opportunities. Many universities and colleges do not permit a lawyer to participate in the proceedings. Schools do allow advisors to help students during hearings and investigations. Retaining a student defense lawyer to advise you is a good idea for the following reasons:

  • A skilled student defense lawyer will make sure the university or college follows its own rules and procedures. The educational institution will also provide you with your due process rights because they know a student defense lawyer is scrutinizing their actions.
  • A student defense lawyer can help you if you are facing criminal charges. You will not have to retain a lawyer because you will already have legal representation.
  • A student defense lawyer can help you understand the university’s or college’s internal rule structure.
  • An experienced student defense lawyer will help you understand the most up-to-date Title IX rules. Understanding the rules of Title IX and a school’s procedures is essential to your defense.

Contact K Altman Law Today to Schedule a Consultation

If you are facing Title IX sexual misconduct charges, you need to retain an experienced student defense lawyer. K Altman Law, has decades of experience representing clients in Title IX cases. We have the resources and skills that will help you establish a strong defensive strategy so you can protect your academic career, your reputation, and your future. Contact K Altman Law, today to schedule a consultation.

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