College Sexual Misconduct Defense

If you (or someone you love) face possible school discipline for allegations of sexual misconduct, your/their academic and professional future could be in serious jeopardy. Accused students must take action immediately to ensure due process and a fair chance to clear their names. Colleges and universities across the United States face intense pressure to aggressively investigate sexual misconduct and administer swift justice. Unfortunately, this often results in accused students being penalized, suspended, or expelled without having a reasonable opportunity to defend themselves.

If you find yourself in this situation, you are undoubtedly going through a slew of emotions—fear, uncertainty, apprehension, confusion, etc. And unfortunately, your worries are at least somewhat justified—especially if you intend to defend yourself on your own. Schools are not courts of law, after all. "Innocent until proven guilty" may be a guiding principle, but it isn't always true in practice. Quite often, the burden of proof falls more upon the accused than the accuser, especially in sexual misconduct cases.

But here's the good news: Unfair sexual misconduct claims can be beaten, especially when you understand the disciplinary process and how your school handles such issues. Hiring an attorney-advisor experienced in student defense can even the odds for you, giving you a much better shot at reclaiming your future. Let's talk about what you need to know to move forward quickly and effectively.

Isn't Sexual Misconduct a Title IX Case?

Not necessarily—not anymore. Under the Trump administration, the U.S. Department of Education and Secretary Betsy DeVos implemented sweeping rule changes regarding how sexual misconduct cases were to be handled under Title IX guidance. While these changes were intended to provide better protections for the accused, many schools across the nation have amended their own student conduct policies to "fill in the gaps" left by these rule changes. As a result, accused students may find themselves running up against individual school policies in addition to, or instead of, Title IX. The resulting confusion makes it all the more important to have an attorney in your corner.

A Bit of Context and History Regarding Title IX—and What's Different Now

Before trying to understand the student discipline process, it's helpful to have some context regarding Title IX, which has historically been the law under which colleges and universities have processed sexual harassment and misconduct claims.

Title IX is a federal civil rights law passed as part of the Education Amendments of 1972. Its intent, at least in part, is to protect students from any form of discrimination on the basis of sex. In the years since it was passed, the definition of "on the basis of sex" has been expanded to include forms of sexual harassment and sexual misconduct, especially where a student feels victimized by another student or a faculty member.

It's important to understand that Title IX is not part of the criminal code (more on that later as it relates to the accused). Rather, it is a regulatory procedure for colleges and universities who receive federal funding—nearly every college or university in the United States of America.

Here's where things get tricky for the accused. Since a school's federal educational funding is tied to compliance with Title IX, a school that is found to non-compliant with Title IX stands to lose possibly millions of dollars in federal funds. This reality puts the school in the position of looking out for its own interests, rather than those of its students, because millions of dollars are at stake. Since public opinion tends to favor the alleged victim over the accused, the school feels pressure to mete out punishment quickly, frequently overlooking the accused's due process rights.

Title IX and the Obama Administration

It's important to note that as a law, Title IX has not changed since 1972. However, the federal government can change how Title IX is interpreted and revise the guidelines for how the rules are enforced. Quite often, these changes occur based on which political party is in power. This is precisely what happened during the administration of President Obama.

In 2011, the Obama Administration released new Title IX rules intended to protect victims of sexual misconduct better. These new rules became known as the "Dear Colleague Letter," or DCL. Unfortunately, those changes made it even more difficult for those accused of sexual misconduct to defend themselves properly.

The intent of the DCL was not actually to create a hostile climate for those accused of sexual misconduct, but rather to change the entire culture around sexual assault on campuses across America. Among the most notable changes:

  • Schools were required to use the lower "preponderance of the evidence" standard of proof, which makes it easier for accusers to prove their cases
  • The definition of sexual misconduct under Title IX was expanded to cover verbal and internet conduct (e.g., inappropriate sexual comments, spreading sexual rumors, posting sexual content on the internet involving another student)
  • Live hearings and cross-examination of accusers was discouraged
  • The number of "mandatory reporters" (school officials required to report cases of sexual misconduct to the school's Title IX office) was increased
  • Schools were pressed to use a "single investigator," appointed by the school's Title IX office, to oversee all aspects of a Title IX case
  • Schools were required to programs designed to prevent sexual misconduct on campus and to educate people on "the root individual, relational, and societal causes of sexual assault."

While these changes seemed good on paper, they came with additional pressure for compliance and pressure to process cases more quickly. Schools that failed to implement these changes could face lengthy, costly investigations (not to mention bad publicity) and a loss of funding in the worst-case scenario. The result was a culture that made it even more challenging for those falsely accused of sexual misconduct to avoid having their educations and reputations derailed. In some cases, the accused have been suspended and expelled in as short a time as 60 days without a legitimate opportunity to defend themselves.

New Rule Changes for 2020

With the Trump administration, the Title IX guidelines changed once again. On May 6th, 2020, Secretary of Education Betsy DeVos released the U.S. Department of Education's new guidance (essentially, a new DCL) to schools across the nation. These rules went into effect in August 2020 for the 2020-21 school year. They are intended to swing the pendulum closer to the center, giving accused students more ability to defend themselves against sexual misconduct claims. Some of the most noteworthy changes include the following:

  • Implementation (or re-implementation) of mandatory live hearings and cross-examination of witnesses in Title IX sexual misconduct cases. (Witness refusing to participate in such hearings cannot have their testimony admitted in the case.)
  • Creating a single investigative process for schools to process sexual misconduct allegations.
  • Clarification of off-campus responsibilities for schools. Colleges and universities are now only responsible for investigating allegations of sexual misconduct that occur at locations and events where the school exercises "substantial control." Under this definition, off-campus fraternities and sororities fall under school jurisdiction, but other types of off-campus housing do not.
  • The "actual knowledge" clause. Previously, colleges and universities could be penalized for failing to pursue Title IX sexual misconduct allegations about which they should have "reasonably known." Now, they are only responsible for incidents for which they have "actual knowledge."
  • Narrowed definition of "sexual misconduct" under Title IX. Perhaps most significantly, the new rules sharply limit what classifies as sexual misconduct for Title IX purposes. Where the definition of sexual misconduct once encompassed any unwelcome conduct of a sexual nature, the new rules define it only in one of three categories:
    • Sexual assault, dating violence, domestic violence, or stalking;
    • Quid pro quo harassment (e.g., attempting to trade favors for sex); or
    • "Unwelcome conduct so severe, pervasive, and objectively offensive that it denies someone equal access to education." (A vague turn of phrase that limits exposure for things like spreading rumors or inappropriate comments except if they prevent "equal access.")

Better Protections for the Accused? Not So Fast…

If you're a student accused of sexual misconduct, don't let these rule changes give you a false sense of confidence. While the new guidance does change how schools process Title IX cases across the country, it does not prevent individual schools from revising their own internal policies on sexual misconduct for situations that may or may not fall under Title IX guidelines. Numerous colleges and universities across the country are doing just that—adapting their policies to reflect the culture that existed under the prior administration. In such cases, the school may not feel the same pressures from the federal government to mete out quick discipline. However, they may still feel pressure to safeguard their public image, honor the consensus of student opinion, and even placate individual donors.

Making things even murkier is the fact that the 2020 rule changes for Title IX may themselves face an uncertain future. Several states' Attorneys General have filed legal challenges to DeVos' new rules—not to mention the prospect of an incoming Democratic administration, which would almost certainly reevaluate the current Title IX guidance.

The bottom line here is that between Title IX, school policies, and uncertainty about the guidance, a student accused of sexual misconduct still has a high risk of being suspended or expelled for unproven allegations, without the opportunity to present a viable defense.

Will There Also Be Criminal Charges?

One of the most common questions among students accused of sexual misconduct on campus is: Will this allegation also lead to criminal charges? After all, many of the actions that fall under the umbrella of sexual misconduct also classify as crimes. What a school calls "non-consensual sex" would classify as "rape" in an off-campus setting, while "non-consensual sexual contact" may be considered "indecent assault" under criminal codes. Technically speaking, if someone accused you of kissing them without their consent and you were charged with a crime, that's enough in some places to force you to register as a sex offender if convicted. Regardless of what happens in your school discipline hearing, what are the odds that you'll also be charged criminally?

The news here is both good and bad for the accused. The good news is that according to statistics released by the Department of Justice, 80 percent of students accused in college sexual misconduct cases (Title IX, in particular) do not go on to be charged with crimes outside the school. So while it remains a possibility—and you should be aware of the chances, depending on what you're accused of—the chance of it happening is relatively small.

The bad news actually has to do with why you're not likely to be charged criminally. One of the main reasons is that accusers find it much easier to lodge a complaint at the school than to air their concerns in front of the police, prosecutors, and the courts. And because "innocent until proven guilty" is not a steadfast rule in schools the way it is in the criminal justice system, an accuser is more likely to get satisfaction by making the complaint within the school system—even with the new rules regarding Title IX.

In other words, while you're probably not facing jail time for the alleged offense, it would actually be more difficult to convict you "beyond a reasonable doubt" in the courts than to punish you in the school setting for something you didn't do. Getting you behind bars is much harder to do than getting you expelled. It's the path of least resistance, so to speak. The burden of proof in a school misconduct investigation is much lower than it is in the United States Justice System.

What Is Really at Stake?

All things considered, even absent criminal charges, an allegation of sexual misconduct can result in horrible repercussions for the accused student for the rest of their life. First, there is the threat of disciplinary sanctions including suspension or expulsion, the loss of years of academic progress, and the lost investment of tuition dollars. But that is not all. Students who are found responsible for sexual misconduct can be denied internships, employment opportunities, the chance to transfer to another school, the opportunity to serve as an officer in the military—and the list goes on. Even before the case has been decided, the student can suffer a long list of consequences, including the imposition of a "no-contact order;" temporary suspension from school while the case is in process; termination of any on-campus employment; restricted campus activities, and more. And of course, the stigma attached to the student's name may follow them for years regardless of guilt, innocence, or even exoneration.

Why You Need an Attorney-Advisor for Sexual Misconduct Allegations

Considering all that is at stake and how easy it is for the innocent to be wrongfully punished, the last thing students accused of sexual misconduct (or their parents) should do is try to "go it alone" through the investigation. Most school disciplinary proceedings do not permit active attorney involvement on either side; however, school policies do allow the accused to have an "advisor" present to help them during the investigation and hearing. Sometimes the school will even provide an advisor—but rarely are such "advisors" adequately suited to the task of helping you with your defense. As an alternative, you are allowed to hire an attorney to act in an advisory role—and here's why you should do so:

  • An experienced attorney-advisor will be up-to-date on the rules. With Title IX interpretations changing every few years, combined with updated school policies, an accused student will be at an immediate disadvantage as soon as a complaint of sexual misconduct is filed. It's your advisor's job to have a clear understanding of both Title IX rules and school disciplinary policies so you can make informed choices about your defense.
  • An attorney-advisor knows how to work well within the system. School disciplinary investigations are neither criminal defense nor administrative/civil law cases—but they do have elements of both. (In essence, the school is a legal system in and of itself.) When your advisor is an attorney, you've got someone legally-minded who knows how to interpret the school's rules structure and help you work within it.
  • An attorney-advisor can also represent your interests in the (unlikely) event that criminal charges are filed. If you do end up having to fight this battle as a criminal defendant, you've already got a legal professional in your corner who knows the facts and knows how to defend you in that arena.
  • An attorney-advisor helps keep the school accountable to its own rules. With a legal mind serving as your advisor, the school naturally takes more heed toward its own policies, so your right to due process is better protected.

Nationwide Student Defense for Sexual Misconduct Allegations

Attorney Joseph D. Lento is one of the most experienced attorneys in the nation when it comes to student defense cases. He has successfully helped countless students at more than a thousand colleges and universities across the United States, at the undergraduate, graduate, and post-graduate levels. He has even defended professors and other academic professionals. His clients have worked and studied at colleges and universities across all corners of the United States, from Alaska to Maine, and from New Jersey to Texas. He has also helped many clients studying and teaching abroad. Realizing how much is on the line for students unfairly accused of misconduct, Mr. Lento has established a nationwide practice to address school-related injustice over the past decade and he has successfully resolved hundreds of Title IX and sexual misconduct cases across the nation.

Passion and Experience to Fight for You

Mr. Lento's student defense practice was born out of a passion for ensuring fairness and justice, especially in schools—where people are often denied due process within disciplinary systems that do not require a substantial burden of proof. This passion, combined with years of proven experience, is what Mr. Lento brings to the table for his clients, giving them the best prospects for success.

Attorney Joseph D. Lento understands what is at stake for his clients, and he treats each case as a personal endeavor, fighting until the very end to ensure a fair process and a favorable outcome.

You don't have to face school sexual misconduct accusations alone. Contact Joseph D. Lento and the Lento Law Firm today for help at 888-535-3686.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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