For many years, allegations of sexual assault on college campuses were reported to university officials, who then took over the investigation, meting out punishment.
However, schools have been under fire for several years now for allegedly mishandling those reports in violation of Title IX gender equality reforms, prompting several schools to hire former prosecutors to handle these investigations and, hopefully, bring them into compliance.
But in the rush to obtain federal compliance, many schools are overlooking the basic due process rights of the accused. Some have called the process a “civil rights disaster.” A recent story in The New York Times on this growing issue indicated that when universities weigh sexual assault claims, the accused may or may not be allowed to review factual statements, let alone retain copies. Additionally, the accused are sometimes denied the right to present their own witnesses, and often don’t have a chance to cross-examine those witnesses presented by the accuser.
Our Birmingham sexual assault defense attorneys recognize an allegation, even if it does not result in a criminal charge, can forever tarnish one’s reputation and/or educational and career opportunities, sometimes even resulting in expulsion.
It happens more often than one might think. Recently, more than two dozen members of the Harvard Law School faculty published an opinion criticizing the school’s sexual misconduct policies for the absence of adequate opportunities to discover facts alleged, confront witnesses or present a defense at an adversary proceeding.
Accused students in these scenarios mistakenly think they do not need a defense lawyer because the proceedings aren’t in a criminal forum. This is an erroneous presumption for two reasons. The first is that the evidence culled in these proceedings can subsequently be used in a criminal prosecution. The second is that even if the case never goes before a criminal judge or jury, the outcome could have a profound impact on a defendant’s life.
This is increasingly important as the number of Title IX complaints against colleges to the federal Department of Education has increased. During the most recent 12-month span, there were reportedly 96 complaints. That is triple the number of complaints made in the previous reporting period.
A recent report by sports fan website SBNation.com indicated there were 93 reported instances of sexual assault on Alabama college campuses in the study period ending 2010. In Mississippi, there were 21. In Louisiana, 53. In Georgia, 200. Florida, 207. In Texas, 256. In Ohio, 469. In California, 707.
Because fines for Title IX violations are so severe, schools have begun outsourcing the work of investigations. Increasingly, these institutions are striving to ensure their work complements the efforts of criminal investigators. While crimes must be proven beyond a reasonable doubt, allegations of “sexual misconduct” need not reach that threshold. Schools have authority to punish students, even when their actions do not pass the rigorous requirements necessary to prove a crime was committed.
Some criminal prosecutors have complained university investigations “muck up” their cases by eliminating the element of surprise, loss of certain forensic and physical evidence and botched interrogations.
Many are calling for better coordination between criminal investigators and university investigators. For this reason, those accused must contact an experienced attorney to ensure basic rights are protected.