If you're a college student in Delaware who is facing sexual misconduct allegations, you could be facing an uncertain future, both academically and professionally. Colleges and universities face intense pressure to pursue all allegations of sexual misconduct according to federal law; failure to do so could cost them their federal funding. And to add to the mix, this year, the U.S. Department of Education introduced sweeping rule changes as to how schools should process and investigate sexual misconduct claims. Amid the confusion, the accused may very well get caught in the crossfire, being unjustly punished or denied due process.
With everything at stake, hiring a student discipline attorney-advisor may be your best defense against sexual misconduct allegations. Read on to learn more about this developing situation and how to protect your rights.
Important Rule Changes in Processing Sexual Misconduct Claims
Students are afforded protection from discrimination on the basis of sex, including sexual harassment and assault, as part of the provisions of Title IX. In May 2020, the Department of Education presented some critical changes in the rules as to how schools should process these claims under Title IX. The new rules, effective for the 2020-21 school year, were designed to provide greater protections against false accusations of misconduct; however, as we will see, the aftermath may actually have the opposite effect. The rule changes include the following:
- Schools must implement a single investigative process for misconduct allegations for faculty, staff, and students, including live hearings and cross-examination of witnesses. Witnesses must be willing to participate in the live hearing and submit to questioning for their testimony to be included in the evidence.
- Redefining on- and off-campus jurisdictions for schools. Colleges and universities are only responsible for investigating alleged sexual misconduct occuring at locations and events over which the school exercises “substantial control,” both on and off campus. This jurisdiction extends to off-campus sorority and fraternity housing, but it does not include other forms of off-campus housing, nor does it cover students in overseas study programs.
- The “actual knowledge” rule change. Schools were once held responsible for any alleged incident of sexual misconduct about which they should have “reasonably known.” The new rules revise this provision so that schools are only responsible for alleged incidents about which they have “actual knowledge.”
Redefining “Sexual Misconduct”
One of the most significant rule changes involves a narrowing of the definition of “sexual misconduct” under federal guidelines. Title IX protections previously defined sexual misconduct as any unwelcome conduct of a sexual nature. Under the new rules, sexual harassment/misconduct are only considered within the following categories:
- Incidents of dating violence, domestic violence, sexual assault, or stalking;
- Incidents of quid pro quo harassment (e.g., faculty or staff attempting to trade certain privileges for sexual acts); or
- “Unwelcome conduct so severe, pervasive, and objectively offensive that it denies someone equal access to education.”
This last point seems to be where the jurisdiction of Title IX becomes most narrow because there could be a wide range of interpretation on which types of actions are “objectively offensive” or deny a student “equal access.” The suggestion is that a school wouldn't have to validate a sexual misconduct claim unless the victim could prove the action denied them equal access to education. It can be expected that what constitutes "severe" and "pervasive" will also be subject to challenge based on whether one is a complainant or a respondent.
What These Changes Mean for the Accused
While on the surface, these rule changes seem to inure to the benefit of the accused, the reality is they may make their situation even more tenuous. Two important reasons why:
1. Many schools are rewriting their own sexual misconduct policies. The new rules of interpretation apply nationwide, but they don't prevent individual schools from revising their own disciplinary policies. As a result, many schools are adopting new conduct policies alongside Title IX to restore victim protections they believe the new rules took away. As a result, someone accused of sexual misconduct may still be investigated and disciplined according to individual school rules rather than Title IX. In some cases, the accused may even find themselves facing parallel investigations regarding the same alleged incident.
2. The new rules themselves faces an uncertain future. Attorneys General for 18 states, including Delaware, have raised legal challenges to the DOE rule changes, and it remains to be seen how the courts will respond. Furthermore, if a Democratic administration is voted into office in the 2020 election, most experts believe these new rules will be rescinded.
Ultimately, these two factors don't bode well for a student accused of sexual misconduct—in Delaware or elsewhere. The risk of unfair treatment has actually gone up simply because there are now too many variables in play.
Advantages of a Student Discipline Attorney-Advisor
Disciplinary action taken against a student for sexual misconduct can have far-reaching implications for their future career. Hiring an attorney-advisor can greatly reduce this risk. An experienced advisor will have the latest information on both Title IX rules and current school disciplinary policies so you are better equipped to ensure your rights are protected. The attorney-advisor can also help you obtain favorable witnesses and gather evidence supporting your defense at the hearing—and if need be, during the appeals process. Finally, simply having an attorney, even in an advisory role, helps keep the school accountable to its own policies, so you are not denied due process. In a great many cases, this additional support can make a huge difference between a positive outcome and a negative one.
Experienced Delaware College Sexual Misconduct Advisor
Once you learn you are being investigated for sexual misconduct at a Delaware college or university, your first step should be to hire an experienced attorney-advisor to bolster your case. Attorney Joseph D. Lento and the Lento Law Firm have an excellent track record of success in defending students across the nation who face Title IX and college sexual misconduct cases and disciplinary proceedings. Protect your future and your good name. Give the Lento Law Firm a call at 888-535-3686 to learn more.
Delaware colleges and universities where Joseph D. Lento can help as your or your student's college sexual misconduct advisor during investigations, hearings, and appeals include, but are not limited to, the following schools:
- Delaware College of Art and Design
- Delaware State University
- Goldey–Beacom College
- University of Delaware
- Wesley College
- Widener University–Delaware Campus
- Wilmington University
It is critical to make certain the college sexual misconduct investigation at your Delaware school is handled properly and that the accused student's interests are protected from as early as possible during the sexual misconduct investigative process. One major reason is because even at colleges and universities where a finding of responsibility for sexual misconduct charges is made at a hearing, the investigation will set the stage for what the hearing panel is provided prior to a hearing (and what the hearing panel will in large part rely on at a hearing), and at schools where the finding of responsibility is made solely through the investigative process, what takes place during the investigation itself will determine whether the accused is found responsible or not responsible for college sexual misconduct charges.
Unfortunately, some students, families, and college employees make the mistake of not taking the necessary precautions as soon as possible when accused of sexual misconduct at college. Some people will mistakenly believe that if they "just explain what happened," their college or university will be fair and impartial and will arrive at the truth. In a perfect world this may be the case, but in a perfect world, sexual misconduct cases would not exist.
Fighting passionately for the future of his clients at universities and colleges throughout the nation for many years, Joseph D. Lento knows how important it is to mount the strongest defense because he understands that an accused's academic and professional future is on the line. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph Lento is a licensed attorney in Pennsylvania, New Jersey, and New York, is admitted as an attorney pro hac vice in state and federal court if needed when representing clients nationwide, and serves as a college sexual misconduct advisor to students and others in academia facing sexual misconduct investigations and Title IX disciplinary cases in Delaware and throughout the nation. Make certain your or your student's interests are protected - Contact National College Sexual Misconduct Attorney Joseph D. Lento today at 888-535-3686 or by completing our online form.