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The "Double Jeopardy" Complaint Provision and its Detrimental Effect on Student Respondents

Posted by Joseph D. Lento | Jun 13, 2018 | 0 Comments

Even in light of the withdrawal of Obama-era Title IX guidelines, people with opinions on all sides of the spectrum in the Title IX enforcement narrative still find substantial flaws in the system. Huge concerns for students, staff, parents, and society alike include the micromanagement of college disciplinary proceedings by the federal government, incompetence exhibited by schools in proceedings, and similar issues that continue to slight both complainants and respondents. In such a confusing time, institutions, and the Department of Education itself have sought suggestions from the public as to how to improve adjudication processes. And as reported in an earlier blog post, some schools have decided to take matters into their own hands by making significant changes - like outsourcing school investigations.

Of these many issues in Title IX processes, one, in particular, has garnered the attention of due process advocates across the country. It exists in many colleges and universities today as the “double jeopardy” complaint provision. This policy is implemented and enforced today due to the re-authorization of the Violence Against Women Act (VAWA). It requires all institutions that receive federal funding to develop procedures for the accused and the victim to appeal the results of an institutional disciplinary proceeding. Title IX also enforces this policy, obliging that if a university opts to provide a right of appeal in sexual assault cases, then it must provide be provided for both the accuser and the accused.

Although this requirement was proposed with intentions of maintaining equality, its application in college contexts raises serious issues. In criminal trials, double jeopardy is referred to as the constitutional right, as addressed in the Fifth Amendment, of a person not to be tried more than one for the same criminal offense. Many believe that this concept should extend to Title IX disciplinary proceedings. It is simply unfair to continually revisit the same issues over and over again. Giving an accuser the authority to appeal an acquittal in a disciplinary proceeding after a “not responsible” verdict actually threatens the fundamental constitutional rights of students.

There are tons of injustices that were pardoned by school double jeopardy provisions that have had devastating effects on innocent students. The story of a Michigan State attendee named Keith Mumphery best exemplifies that repercussions these policies unwarrantedly and severely impose.

Keith Mumphery had a female hookup partner on campus in 2015. When she first accuses the would be pro football receiver of sexual assault in her dorm room, he provides evidence backing his claims of innocence. The police investigate and Mumphery turns over his phone and provides a DNA swab for further proof. The accuser doesn't return calls or partake in the process, so school officials decline to prosecute.

When Michigan State conducted a simultaneous Title IX investigation, the panel clears him. The woman, however, decides to appeal this finding, leading Michigan State to reopen the case. By this time he has graduated and now plays football at the professional level for the Houston Texans. Mumphery hears nothing of the appeal because he no longer checks his school email address. This time, the school concludes differently and finds him responsible for relationship violence and sexual misconduct. News breaks that he's been expelled for sexual assault.

Two days later, the Texans' coach calls him into the office and lets him go. Despite being cleared twice, both criminally and through adjudication, Mumphery is still haunted by what should have been a closed case.

Mumphery isn't alone. Many innocent student respondents are forced to relive their allegations and be put back on trial due to double jeopardy complaint provisions in collegiate settings. Further proving what most critics of current Title IX adjudication systems believe: campus justice oftentimes isn't actual justice.

Title IX Attorney Helping Clients Nationwide

The only way to make sure your voice is heard and your rights are upheld is to retain a student defense attorney.  National Title IX attorney Joseph D. Lento has the skill, experience, and expertise to help you preserve your entitled rights under Title IX and your school's policy. For a case evaluation or more information about his representation, contact him online or give him a call at 888-535-3686 today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients nationwide. Attorney Lento and his team represent students and others in disciplinary cases and various other proceedings at colleges and universities across the United States. Attorney Lento has helped countless students, professors, and others in academia at more than a thousand colleges and universities across the United States, and when necessary, he and his team have sought justice on behalf of clients in courts across the nation. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-