Colleges and universities have in recent years given enormous attention to discouraging, preventing, and punishing student sexual misconduct. Institutions are hard at work publishing and revising complex and oftentimes confusing sexual conduct codes and sexual grievance processes.
In doing so, schools have gone well beyond what federal Title IX legislation requires schools to address, in the form of sex discrimination. Title IX prohibits quid-pro-quo and hostile-environment sexual harassment and certain forms of sexual violence including sexual assault and domestic and dating violence. Those Title IX prohibitions raise their own issues for answer.
Many colleges and universities, though, also prohibit and punish, well beyond Title IX, a long list of behaviors they often vaguely define as sexual exploitation. Students facing Title IX allegations have the special protections of new Title IX regulations. But when instead colleges and universities charge a student with violating the school's own sexual-misconduct prohibitions beyond Title IX, many schools offer only a limited procedure without Title IX protections.
As a result, students may be far more likely to run afoul of their school's own broad and vague sexual-misconduct definitions, and for others to successfully manipulate those broad definitions to prove false and exaggerated claims against them, than to violate any federal Title IX mandate. The stakes in those cases are just as high: the student's education, career, reputation, and future. The protections, though, are missing.
National sexual misconduct attorney-advisor Joseph D. Lento has helped hundreds of students nationwide defend and defeat allegations of college sexual misconduct, including alleged conduct well outside of Title IX. Colleges and universities are charging students with sexual misconduct outside of Title IX, as this piece addresses. Attorney Lento's strategic approach and litigation skills are especially necessary for students facing charges of college sexual misconduct beyond Title IX.
Frequently Asked Questions
- What Do I Have at Stake in a Sexual Misconduct Proceeding?
- Can Colleges Really Write Their Own Sexual Misconduct Policy?
- What Sexual Misconduct Are Colleges Prohibiting Beyond Title IX?
- What Is Sexual Exploitation?
- What Are Examples of Sexual Exploitation?
- Who Decides College Sexual Misconduct?
- How Do They Decide Sexual Misconduct Allegations?
- Where Can I Find My School's Procedures?
- Do I Have to Participate in a Misconduct Proceeding?
- Should I Participate in My Misconduct Proceeding?
- What Else Might My Participating Accomplish?
- What Can Happen If I Ignore My Misconduct Proceeding?
- Will the Police Be Involved?
- Does Constitutional Due Process Protect Me?
- What Are My Minimum Rights?
- May I Retain an Attorney to Assist Me?
- What Will My Attorney Get to Do for Me?
- Will My Attorney Get to Cross-Examine Witnesses?
- What Good Is Cross-Examination?
- Will My School Provide any Assistance?
- What Can I Do If I Lose and the School Finds Misconduct?
- What Appeal Grounds Might I Have?
- Who Decides an Appeal?
- What Sanctions Could I Face?
- Who Decides the Sanctions?
- What If I Don't Comply with Sanctions?
- What's the Single Best Thing I Can Do?
What Do I Have at Stake in a Sexual Misconduct Proceeding?
So much that matters to you that we may as well say everything. Just because your school alleges sexual misconduct outside or beyond Title IX doesn't mean it's not serious. Students get suspended and expelled for non-Title IX sexual misconduct, just as they do for Title IX sexual misconduct. What's on the line for you? Your education, job, career, and reputation. You may also have more on the line, including your closest relationships with friends and family members. Don't take a college sexual misconduct proceeding lightly. The school isn't taking it lightly. Nor should you.
Can Colleges Really Write Their Own Sexual Misconduct Policy??
Yes. Colleges and universities are free to establish their own policies governing student conduct in school programs and on school premises. Title IX requires schools receiving federal funding to prohibit only certain sexual misconduct and to give accused students certain rights when facing charges of Title IX violations. Title IX does not prevent schools from prohibiting more sexual conduct or from making their own procedures for non-Title IX charges.
What Sexual Misconduct Are Colleges Prohibiting Beyond Title IX?
Colleges and universities certainly research and share pattern sexual-misconduct policies, while listening to nonprofit advocates against campus sexual misconduct like the National Center on Sexual Exploitation. Schools aren't generally inventing policies out of thin air. A very common policy that goes beyond Title IX's core prohibitions against sexual violence and sexual harassment in its quid pro quo and hostile environment forms, names sexual exploitation as the prohibited non-Title IX sexual misconduct.
What Is Sexual Exploitation?
The very common prohibitions of sexual exploitation generally define it as taking sexual advantage of another without consent for one's benefit or the benefit of another party. That, for one out of dozens of other same examples, is the definition that Duke University's Student Sexual Misconduct Policy gives to sexual exploitation. If that definition seems broad and ambiguous, then you have a correct sense of the accused student's problem.
What Are Examples of Sexual Exploitation?
Many college and university sexual-misconduct policies prohibiting sexual exploitation, like the University of Michigan's Interim Policy on Sexual and Gender-Based Misconduct, among many same and similar examples, prohibit these specific forms of sexual exploitation:
- intentionally or knowingly incapacitating another to compromise that other's ability to consent to sexual activity;
- intentionally or knowingly engaging in voyeurism observing or allowing others to observe private sexual or intimate activity without consent;
- intentionally or knowingly recording, disseminating, or posting images of private sexual or intimate activity or intimate parts without consent;
- prostitution or solicitation to prostitution intentionally or knowingly recruiting, transporting, or harboring persons for commercial sex acts;
- intentionally or knowingly demanding benefit under threat of disseminating a recording of private sexual or intimate activity or a person's genitalia, groin, breasts, or buttocks;
- intentionally or knowingly exposing another to a sexually transmitted infection without the other's knowledge; and
- intentionally or knowingly aiding or assisting another person in committing the above.
Who Decides College Sexual Misconduct?
Decision-makers vary from school to school. Because all schools receiving federal funds must maintain a Title IX procedure, some colleges and universities simply refer their non-Title IX sexual-misconduct cases and charges through the same Title IX procedure. In those cases, a Title IX coordinator generally appoints one or more investigators to gather evidence for the school to present to a special Title IX hearing officer or board trained to evaluate sexual-misconduct allegations. The Title IX hearing officer or board decides the charges.
Many colleges and universities, though, have a separate procedure for their non-Title IX charges and cases. And many of those procedures assign the decision not to a special officer or board but instead to the Title IX coordinator, another student-conduct coordinator, or the dean of students. Other schools send non-Title IX sexual-misconduct cases to student conduct boards, some of them including student decision-makers. In other words, schools place the decision on non-Title IX sexual-misconduct charges in the hands of many different individuals or groups, not necessarily having the training or relative independence of Title IX hearing officers or boards.
How Do They Decide Sexual Misconduct Allegations?
Colleges and universities follow procedures, sometimes called a grievance process, to decide sexual misconduct allegations. Those procedures tell what happens, when it happens, and who is involved. Those procedures can be critical to the outcome of your matter. They can also be complex, confusing, and even contradictory. Retain sexual misconduct attorney-advisor Joseph Lento to help you identify, comply, and strategically deploy those procedures to your advantage.
Where Can I Find My School's Procedures?
Colleges and universities publish their sexual-misconduct procedures on their website and in student handbooks and manuals. You can usually find the procedure on your school's web pages having to do with equity, inclusion, Title IX, or other non-discrimination policies. Be careful, though, to identify the correct procedures. Schools can have several overlapping or similar procedures to address student conduct. Your school's Title IX office should be able to direct you to the correct procedure. Better yet, retain attorney Joseph Lento to help you identify, understand, and deploy those procedures.
Do I Have to Participate in a Misconduct Proceeding?
No. Schools do not generally compel accused students to attend. Indeed, they generally lack the legal authority, such as by subpoena, and the law enforcement means, to compel attendance as a law court might compel attendance. That being said, as explained further below, if a student seeks to remain a student, they will be expected to participate in such proceedings. If a student does not participate, the school will, in most instances proceed to investigate and adjudicate the case despite the accused student's decision or inability to participate. If that is to take place, it would be extremely likely that the accused student will be found responsible because there would be nothing to offset the allegations being made. Additionally, at some colleges and universities, an accused student, often known as the "respondent", can face additional code of conduct charges for failing to comply with school directives.
Should I Participate in My Misconduct Proceeding?
Yes. You have every good reason to participate to tell your side of the story. In addition, as referenced in the paragraph above, there are reasons why it would be in accused student's best interests to participate. Sexual-misconduct procedures generally permit the accused student not only to meet the decision maker to explain what happened but also to name supporting witnesses and supply supporting statements and documents. No one else is likely to advocate for you. And remember to retain national sexual misconduct attorney-advisor Joseph Lento to help you. You need skilled advocacy, not uncertain or weak advocacy.
What Else Might My Participating Accomplish?
While colleges and universities often provide only bare due process, some colleges and universities permit you and your attorney advocate to do much more than simply tell your side of the story with your own documentation and witnesses. Some schools maintain procedures that permit you and your attorney to review, comment on, correct, and supplement investigation files and investigative reports. Some schools even permit your attorney to challenge adverse witnesses on cross-examination. You can magnify your chances of a favorable outcome by participating with skilled counsel.
What Can Happen If I Ignore My Misconduct Proceeding?
Any sanction that the school authorizes its officials to impose, right up to your expulsion from the school and dismissal from all your school's programs. Your school's policy very likely says so, and if it doesn't say so, that authority for the school to proceed in your absence remains implicit. Colleges and universities do not suspend sexual-misconduct proceedings waiting or hoping for the accused student to show up. The school will proceed without you. Your absence may actually make the proceeding easier for the school. Your absence can also signal the decision maker that you are guilty, scared, careless, or otherwise unduly inattentive to significant matters.
Will the Police Be Involved?
Probably not, if they're not already involved, but it very much depends on the nature of the alleged misconduct. College and university sexual misconduct proceedings involve school personnel and officials, not government police officers and public prosecutors, unless the matter includes credible evidence of a crime. If the complainant or school officials have not already contacted the police, or the police have not already contacted you, by the time you get the school's notice of charges, then chances are fair to good that your matter will remain between you, the complainant, and the university. Additionally, not to base important decisions off of statistics, but according to Department of Justice statistics, 80% of college sexual misconduct cases will involve a criminal investigation or case. On the one hand, this is good news for an accused student as it can give some peace of mind. On the other hand, what can take place through the school process, including the possibility of suspension or expulsion if found responsible, can have a lifetime of consequences.
Does Constitutional Due Process Protect Me?
Yes, in public colleges and universities. Private colleges and universities may have policies providing similar due-process assurances. But constitutional due process is a flexible concept that courts adjust to the nature of each proceeding. The Constitution does not require colleges and universities to provide court-like procedures in administrative proceedings over sexual misconduct.
What Are My Minimum Rights?
You will learn of the school's charges in writing in advance. You should learn of the evidence against you, whether that evidence involves witness statements, video, photographs, documents, electronic information, or other exhibits. You will have some form of administrative conference, meeting, or hearing to present your side to the decision-maker.
May I Retain an Attorney to Assist Me?
Probably, although your college or university is likely to limit to some degree your attorney's assistance. (See the next answer.)
What Will My Attorney Get to Do for Me?
Rules vary, but in the case of sexual misconduct beyond Title IX, your college or university may limit your attorney's assistance to advising you rather than advocating for you at hearings. Some schools permit greater attorney participation, especially those schools that maintain a single policy for both Title IX misconduct and non-Title IX misconduct. But the many schools having separate policies generally limit your attorney's direct participation in non-Title IX cases. Your attorney's assistance remains highly valuable to you, even if the school sharply limits your attorney's direct participation.
Will My Attorney Get to Cross-Examine Witnesses?
Some schools permit attorney cross-examination, especially those schools that resolve Title IX and non-Title IX charges under the same procedures. Title IX procedures must permit attorney cross-examination. But many schools have separate non-Title IX procedures, and those schools tend to remove cross-examination, substituting an administrative conference for a full-blown Title IX hearing.
What Good Is Cross-Examination?
Cross-examination is a powerful engine for truth. When witnesses, including the complainant, make up stories and lie about events, they inevitably leave a trail of exaggerations and inconsistencies. Skilled cross-examination by a trial lawyer like attorney Joseph Lento exposes liars. But cross-examination is also effective with honest witnesses who are simply mistaken about events. Cross-examination can show that an honest but inaccurate witness wasn't in a position or condition to observe, recall, and relate accurate information. Retain attorney Joseph Lento to plan and conduct any cross-examination available to you in your school's proceeding.
Will My School Provide Me any Assistance?
Maybe, although it may not be the kind of help you need. Some colleges and universities require that the accused student have an advisor. Those schools will assign an advisor if the student does not retain an attorney advisor. The advisors, though, are typically university employees having that conflict of interest. They are not independent and may not have your best interests at heart. Instead, retain national sexual misconduct attorney-advisor Joseph Lento. Separate from a school advisor having ties to the college or university, because of what is at stake and involved, you need someone in your corner who is solely dedicated to your case and will work tirelessly in an effort to ensure a fair process and a favorable outcome.
What Can I Do If I Lose and the School Finds Misconduct?
Most colleges and universities authorize some form of appeal from an adverse decision. If your school doesn't offer an appeal, or if you lose an appeal, attorney Joseph Lento may be able to advocate for your appropriate relief with a university ombudsman or general counsel.
What Appeal Grounds Might I Have?
If your college or university finds that you committed sexual misconduct, then you are reasonably likely to have some form of appeal available. An appeal, though, is not a second bite at the proverbial apple. You probably won't get to rehash evidence and arguments. Policies vary, but many schools limit appeals to unusual irregularities like apparent bias, a decision beyond the scope of the charges, or newly discovered evidence. Attorney Joseph Lento knows how to discern and advocate these grounds. Don't attempt an appeal without skilled counsel.
Who Decides an Appeal?
If an appeal is available, then someone other than the original decision-maker will decide the appeal. That's the nature of an appeal, to have a fresh set of eyes review the decision. Some colleges and universities ensure a truly fresh set of eyes by assigning appeals to appeal panels. Panel members are typically university professors or staff members with some appeal training. Some schools include a student on the appeal panel. Other schools, though, send appeals back to the Title IX coordinator, dean of students, conduct officer, or another official who may have first received the complaint and then coordinated the proceeding. That's not fresh eyes. It could be more like a rubber stamp, making all the more important the quality of the appeal's advocacy.
What Sanctions Could I Face?
The sexual-misconduct policies of some colleges and universities simply authorize any appropriate sanction up to the offending student's expulsion, meaning dismissal from school. More commonly, the school's policy will list progressive forms of punishment beginning with warning and moving on to reprimand, counseling, exercises or activities, training or education, and school or community service. From there, the sanctions get more serious, including the common minimum sanction of suspension for a term, and then suspension for a year, expulsion, barring from school programs and facilities, and withholding or revocation of the degree.
Who Decides the Sanctions?
College and university sexual-misconduct policies vary on who decides the sanction. Many schools grant the sanction decision to the hearing officer, board, or panel deciding whether the student violated the sexual-misconduct policy. Other schools reserve the sanction decision for another official or panel after the first official or panel decides on any violation. A few schools have sanctions officers or sanctions panels, presumably with sanctions training. Other schools turn the sanction decision back to the Title IX coordinator, dean of students, or another official who may have commenced and coordinated the proceeding and may, from experience, be most familiar with the typical punishments.
What If I Don't Comply with Sanctions?
The sexual-misconduct policies of some colleges and universities don't say what happens to a student offender who ignores the sanctions. They instead presume compliance and implicitly empower school officials to enforce sanctions. But other colleges and universities expressly authorize school officials to enforce sanctions, including barring the student from continuing at the school until proving compliance. If the sanction includes dismissal barring the student from school programs and property, the school could well seek police assistance to prevent the student's trespass. Don't fool around with sanctions. Either comply, or seek an appropriate legal challenge with the advice and assistance of counsel.
What's the Single Best Thing I Can Do?
Retain national sexual misconduct attorney-advisor Joseph Lento and the Lento Law Firm. Why? Attorney Lento and his team can handle everything from your first significant communications with school officials, into the investigation stage when you should be presenting your best evidence, through efforts at informal resolution, and through any formal hearing and appeal. At every stage of the proceeding, attorney Lento will be bringing to bear in your interest his experienced strategic approach, trial-lawyer advocacy skills, and vast knowledge of the interests, motivations, and preferences of college and university misconduct officials. The one thing that most levels your playing field is to have attorney Lento on your side of that field.