How Do I Defend Myself Against Title IX Sexual Misconduct Charges?

Sexual misconduct is among the most serious charges any student can face. If someone has leveled an allegation against you, you likely have a lot of questions.

• What will an investigation be like?
• Will I have the chance to defend myself?
• What could happen if I should lose my case?

You need answers sooner rather than later.

Attorney Joseph D. Lento and his Student Defense Team want you to know: they know what you're going through, and they're on your side. They've handled hundreds of Title IX cases. They know the law; they know how colleges and universities operate; they know how to get you through it all, from start to finish.

Below, you'll find information on all the important topics related to Title IX charges. You'll learn what Title IX is, how the process works, what sanctions schools typically assign, and how to prepare yourself for an investigation and a hearing. Before you read any of that, though, it's important you understand that you're not in this alone. The Lento Law Firm is here to help.

A Brief History of Title IX

First things first. If you're facing sexual misconduct charges, your school is likely using investigation and adjudication procedures set forth under Title IX. As a starting point, then, it can be helpful to know something about this federal law.

Title IX was originally passed by the US Congress in 1972 with the goal of eliminating sexual discrimination in federally funded education programs. A noble goal: in the late 1960s and early 1970s, college campuses could sometimes be openly hostile towards women.

Like many laws, though, Title IX has evolved over time so that it's no longer used in precisely the way it was intended. In the early years, the law's main job was to force colleges and universities to police themselves. Schools were expected to adopt equal standards of admission and to ensure women were treated fairly in the classroom, and they were held accountable if they didn't. Any school that refused to comply risked losing its federal funding. No surprise that most fell into line pretty quickly.

As time went on, though, the government expanded the term “discrimination” to include “harassment” and most forms of sexual misconduct, from stalking and relationship violence, to sexual assault and rape. At the same time, the federal government began to move away from its concern with how schools operate and towards a deeper concern with student behaviors. Colleges and universities weren't just expected to refrain from sexual discrimination and harassment themselves. Most had stopped those practices anyway. Now, they were expected to prevent sexual discrimination and harassment among their students. This, as you might imagine, was a much more difficult task. Yet, Title IX enforcement is still tied to federal funding. Schools risk their bottom line if they don't aggressively pursue all allegations students level at one another. As a result, they can sometimes be overzealous in their investigations and overly harsh in the punishments they hand down.

These changes in how the law was used created some significant problems. One of the biggest was that schools—traditionally tasked with educational responsibilities—now had to take on law enforcement and judicial roles. To make matters worse, the federal government offered little guidance in how to go about fulfilling those roles. Left to their own devices, the physics professors and English adjuncts who were given the job created a hodge-podge of approaches, with no two schools adopting the same procedures. One school might conduct rigorous investigations and guarantee every accused student a fair hearing. Another might turn over decisions about guilt and innocence to a single individual with little or no training. At some schools, the accused were treated as innocent until proven guilty. At others, investigators were encouraged to believe the victim no matter what.

This situation changed dramatically in August 2020 with the Trump administration's adoption of all new Title IX guidelines known as the “Final Rule.” Among other changes, these guidelines set up a rigid set of procedures meant to govern how all cases are investigated and adjudicated. For the first time, the law guaranteed the accused some fundamental due process rights.

Unfortunately, the Final Rule has not been without controversy. In the several months after its passage, for example, several schools and state governments sued to keep it from going into effect. When President Biden took office in early 2021, he promised to roll back many of the Final Rule's provisions. To that end, his Department of Education has already issued a document advising schools on how to exploit loopholes in those provisions.

What does all of this history mean to you? First, it should give you some idea of the problems that have plagued this law since its inception. Many of those problems remain unresolved today, and in fact, Title IX remains in a state of flux. It isn't entirely clear how many aspects of the law should be interpreted. It's not even clear who it's meant to protect.

From a practical standpoint, all the change and debate mean it can be difficult to navigate the system. For example, the Final Rule gave a number of important rights to the accused. It's not always easy to know how to use those rights, though, and some schools may even try to limit them.

The bottom line is, you can't hope to defend yourself from charges all on your own. You need someone like Joseph D. Lento and his Education Law Team, someone who knows Title IX, who has experience with its processes and procedures, and who has helped defend hundreds of students.

The Title IX Process

If you've been charged with a Title IX offense, the most important thing you need to know is how the Title IX investigation and hearing procedures work. The entire process is governed by the Final Rule, and it can be complicated, even for attorneys. However, it's a good idea to familiarize yourself with the basic outline, so you have some idea of what to expect.

First, you should know that while Title IX investigations and hearings resemble real-world criminal investigations and court cases, they aren't the same. As a starting point, you should know:

• Guilt isn't called “guilt.” Instead, it's known as “Responsibility.”
• Instead of “defendants,” those accused of an offense are known as “Respondents.”
• Instead of “victim,” alleged victims are known as “Complainants.”

Here's how cases work.

• Title IX cases begin with an allegation made by a Complainant to the school's designated Title IX Coordinator. The Coordinator's first job is to decide whether or not the allegation merits a full investigation.
• If your school does decide to investigate, it must provide you with a Notice of the Investigation. This document should detail the charges and provide you with a list of your rights. Among these, you have the right to
• Equal treatment to the Complainant
• An advisor, who may be an attorney
• A presumption of Not Responsible
• Unbiased investigators and decision-makers
• Review all evidence against you
• Submit evidence and suggest witnesses to the investigator
• Advanced notice of any and all meetings and proceedings
• The Coordinator appoints an Investigator to uncover the facts of the allegation. As part of the investigation, this individual interviews both sides of the case. They also collect any physical evidence, such as clothing, video and images, and dorm logs. Finally, they talk to potential witnesses. Most schools set a time limit on investigations, often between 90 and 120 days.
• At the conclusion of the investigation, the Investigator must submit a written, unbiased report of their findings. Both sides then have ten days to review this document and to suggest any necessary changes.
• The Investigative Report is ultimately forwarded to the Title IX Coordinator, who sets a time and date for a hearing and selects one or more decision-makers to preside over the proceedings.
• Hearings must be held live. However, both sides have the right to request the use of screens or closed-circuit video.
• At the hearing, you have the right to make arguments, present evidence, and call witnesses to testify on your behalf. In addition, you may—through your advisor—cross-examine the Complainant and any other witnesses against you. The Complainant has the opportunity to do the same.
• At the conclusion of the hearing, decision-makers deliberate as to your level of Responsibility. In making their decision, they use a legal standard known as “preponderance of the evidence.” Far less strict than “beyond a reasonable doubt,” this standard requires they find you Responsible if they believe it is “more likely than not” that you committed an offense. Defense attorneys sometimes refer to this standard as “fifty percent plus a feather” since it means decision-makers only have to be just over fifty percent convinced in order to find you Responsible.
• Finally, Title IX affords you the right to appeal the hearing outcome, but only under certain conditions. First, your school will set a limit on how long you have to appeal. In addition, you can't simply appeal because you don't like the verdict. Instead, grounds for appeal are limited, usually to
• The discovery of new evidence that could alter the outcome
• Procedural errors that might have affected the outcome
• Bias on the part of a Title IX administrator

Alternative Processes

Most sexual misconduct cases are Title IX cases, but not all. There is a small chance you may be investigated under alternative procedures. That's because, among other changes to the law, the Final Rule limited Title IX investigations to incidents that happen on campus. Many schools worried that this change might allow some instances of misconduct to fall through the cracks. In response, these schools re-wrote their Student Conduct Codes to deal with these so-called “Non-Title IX” incidents.

Because these non-Title IX cases aren't subject to federal law, schools are free to choose any approach to investigation and adjudication.

• A few have adopted Title IX procedures for all their disciplinary cases.
• Some now use procedures that are similar to Title IX procedures but may differ in small but important ways. For instance, the school may not allow you to select an attorney as your advisor. They may not let you cross-examine the Complainant. They may allow you fewer options when it comes to appealing the hearing outcome.
• Finally, some schools use an entirely different set of procedures for these cases. For instance, you may not be entitled to defend yourself at a formal hearing. Instead, your school may have an investigator decide your Responsibility at the conclusion of the investigation, or they may let a committee decide your fate in closed-door sessions.

Whatever situation you're facing, you can trust that Attorney Joseph D. Lento and his Student Defense team have experience dealing with it. They know how all the judicial procedures at your school work and can help you make sense of the process.

What About Interim Measures?

Title IX gives schools the right to institute interim sanctions if they believe you pose a significant threat to the Complainant or to the campus generally. What kind of interim measures can they take?

• No contact orders: It's standard procedure in sexual misconduct cases for schools to issue no contact orders. Basically, this prohibits you from communicating with the Complainant in any way.
• Scheduling changes: The school can alter when you take your classes or even which classes you can take in order to prevent you from making contact with the Complainant.
• Other campus limitations: Likewise, your school can limit where you go, restricting gym time, for example, or requiring you to eat in a particular campus facility.
• Removal from campus housing: The school can require you to move off campus if it feels you are a danger to the community.
• Suspension: Of course, the most serious interim measure is complete removal from campus. For all practical purposes, you aren't a student anymore if you're under suspension. You can't take classes, and this can put your degree at risk. You could also lose access to important defense resources. If, for example, your campus email is cut off, you may not be able to search for past emails.

Schools have broad authority to enact interim measures, but that authority is by no means unlimited. If your school has suggested it might impose limits on your movement or even suspend you, there are some important factors to keep in mind.

• Interim measures are not permanent unless your school finds you Responsible after a full investigation and hearing.
• One of your important rights under Title IX is the right to formally challenge any pre-hearing sanction the school imposes.
• You have the right to equal treatment to the Complainant. That is, if you're asked to drop a course or change your schedule, you have the right to insist that the Complainant be treated exactly the same way.
• Your school can't simply issue sanctions. In addition to the fact that you have a right to a presumption of “Not Responsible,” Title IX clearly states that your school must clearly and concretely demonstrate you are a danger before it can enact any sanctions.

None of these rights can protect you completely if the school deems you a threat and can offer some proof to back up its contention. They do offer some protection from arbitrary decisions, though.

It's also worth remembering that you can help to forestall interim measures. You want to be as cooperative as you can, up to a point. While an accusation of sexual misconduct is always unpleasant to deal with, and your emotions will almost certainly be running high, if you can't control your temper, you could very well give your school the ammunition it needs to impose pre-hearing sanctions. Of course, you also don't want to say or do anything that might be used as evidence against you at the hearing. This can be a tricky balancing act, and it's one reason why an attorney can be so vital to your case. The moment you are accused, or even if you just think you might be accused of sexual misconduct, it's essential you contact Joseph D. Lento and his team so they can help you make the right decisions from the very beginning.

Issues of Consent

There's a very good possibility that your case will hinge on the issue of consent. Many sexual misconduct cases ultimately come down to he-said, she-said, and the central question of whether or not your accuser consented to sexual activity. As you begin to prepare your case, then, you'll want to think through this element carefully.

First, you should know that Title IX doesn't specifically define “consent”:

“[the government] will not require recipients [schools] to adopt a particular definition of consent with respect to sexual assault, as referenced in this section.” (Final Rule Section 106.30)

Instead, it leaves that task up to individual schools. This makes it difficult to talk concretely about what consent actually means. However, there are some general ideas to which most schools tend to subscribe.

• Silence or the absence of resistance does not imply consent. In fact, even if your partner actually says “yes,” you are also expected to use their body language to determine if they are actually consenting.
• Consenting to one activity does not mean consenting to others. Just because your partner consents to kissing, for example, doesn't mean they consent to go further. Even if they consent to something intimate, like oral sex, that does not necessarily mean they are willing to have penetrative sex.
• Prior consent does not presume further consent. You cannot assume that just because someone has had sex with you in the past, they are willing to do so again. This is true even if you are involved in a serious or long-term relationship.
• No one can consent if they are incapacitated. If a person cannot make a sound judgment, they cannot consent to sexual activity. This includes being drunk, passed out, or simply asleep. In addition, persons with mental deficits may not be able to give proper consent. Likewise, anyone under the age of 18 cannot consent to sexual activity.
• Consent under duress is not consent. Someone may say they agree to sex, but if they do so under threat, they have not actually consented. Obviously, this applies to the threat of physical violence. However, it can also apply in situations where one partner is in a position of authority over another. In such cases, the subordinate can argue that they participated only out of fear of reprisals.
• Consent can be withdrawn at any time. This is true even if both you and your partner have agreed to participate in sexual activity. It is true even if you are already engaged in sexual activity. At any point, either of you can decide to end the activity, and the other partner must respect that decision.

How to Prepare

When you're facing an accusation from your university, any kind of accusation, it can feel daunting. Universities are full of faculty—highly educated men and women—who have vast experience making sophisticated academic arguments. Most of us get nervous just asking our professors a question, let alone defending ourselves against a school's complicated policies. What you need, then, is a clear plan, something to fall back on when you're feeling overwhelmed and unsure what to do next.

What might that plan involve?

1. First and foremost, you must take every accusation seriously. If you are found responsible for sexual misconduct, dismissal is the most likely outcome. And dismissal isn't just dismissal. It could very well bar you from attending any other schools in your state. It also frequently comes with a transcript notation about the nature of your offense. That could prevent from enrolling anywhere, in state or out of it. Plus, you won't want to use that transcript when applying for jobs, so you'll essentially be looking at careers that don't require a college degree. All of this leaves aside what might happen if your offense should become public knowledge. Bottom line: it is no exaggeration to say that everything is at stake.
2. Just because the situation is serious or defending yourself will be complicated is no reason to simply accept the charges against you. You have every right to protect your educational future and your personal reputation. In addition, Title IX guarantees you many important due process rights. Even if you feel you've made a mistake, you don't have to suffer unjust penalties. Always fight back.
3. You should never talk to school officials or any law enforcement representatives without first speaking to someone from the Lento Law Firm. You may be used to thinking of your school as being on your side. After all, it's the place where you call home. Your college or university feeds you. It educates you. Probably faculty and administrators have had your best interests at heart, at least up to now. If you've been accused of sexual misconduct, though, your relationship with your university has changed. Your school is no longer on your side. In fact, Title IX requires it to conduct the most rigorous investigation it can. That means anything you say can, and likely will, be used against you. When you consult Joseph D. Lento and his team first, you ensure that you can't damage your case.
4. Generally speaking, don't talk to others about your situation either. The exception here is that it can often be emotionally helpful to confide in a close friend or two. Otherwise, though, keep the charges and any explanations you might have to yourself. Even in the best cases, telling others can create problems for your case, not to mention generating ill will against you in the community. In the worst cases, what you tell others can wind up as evidence against you during the hearing.
5. Definitely don't contact the Complainant. It can be tempting to believe that if you could just talk to your accuser, you could straighten everything out. That's almost never the case. If they leveled a charge against you, you have to accept that they have a great deal of animosity. Furthermore, even if they did decide to drop their allegation, the school could still move forward with the case against you. More likely, though, by emailing, texting, or talking in person with the Complainant, you will aggravate the situation, and you could even wind up with additional charges.
6. Know your rights. Your school isn't a court of law, and it doesn't have to treat you the way you'd be treated in the criminal justice system. Even so, you have rights, especially under Title IX. For example, your school must offer you exactly the same support it offers the Complainant. It must let you choose an attorney as your advisor. It must treat you as “Not Responsible” until proven otherwise. Joseph D. Lento and his Education Law Team can explain all your other rights. In addition, they can make sure you understand how to use these rights effectively, and they can monitor your case to make sure your school treats you fairly.
7. Take control of your situation. Of course, you want to hire an attorney to serve as your advisor. Joseph D. Lento and his team can do a lot of the heavy lifting, like gathering evidence, interviewing witnesses, and preparing your strategy. Even so, you need to be involved in preparing your own defense. That means sitting down as soon as possible and writing out your recollection of events. It means coming up with a list of potential witnesses and preserving any evidence, even if you aren't sure if it will help you.
8. Protect your mental health. Again, sexual misconduct allegations can be nerve-rattling. You aren't just being accused of plagiarism or toilet papering the quad. Someone you trusted—maybe even loved—has leveled a horrific accusation against you. That can upset even the strongest person. It's important at times like these, when you are at your most vulnerable, that you seek psychological and emotional stability. You can't hope to win your case if you're stressed out and unable to help in your defense. Start by trying to keep your life as normal as possible. Go to classes as usual. Exercise. Take breaks when you need them. In addition, you may want to visit a counselor or therapist. A professional can help you to develop positive strategies for managing your stress. You can get through this challenge, but only if you keep yourself healthy.

Of course, it should go without saying at this point: the most important thing you can do to prepare yourself is contact Joseph D. Lento and his team They can help you develop your defense.

What Can An Attorney Do for You?

Up to this point, we've talked about what you can do to get ready for a Title IX sexual misconduct defense. As we've mentioned though, it's always a bad idea to try and handle your case on your own. You need an attorney. Let's talk a little bit about why. What exactly can someone from the Lento Law Firm do for you?

• It may seem obvious, but it bears saying: Joseph D. Lento and his Student Defense Team will advise you. That means helping you come up with a strong defense strategy and mapping out exactly how you should respond to questions and how you should conduct yourself at the hearing. They'll let you know who to talk to and who to avoid. They'll tell you what to say and when to keep quiet.
• Even better, a Title IX attorney can sometimes do the talking for you. Joseph D. Lento and his team know the law; they know what to expect from investigators and prosecutors; they're practiced in thinking on their feet and responding to questions.
• An attorney from the Lento Law Firm will represent you in hearings and—if necessary—in court. Under current Title IX guidelines, a Title IX attorney can sit beside you during investigative meetings and at the hearings and offer advice. In addition, they are responsible for conducting all cross-examination. If you should wind up in court for any reason, it's their job to handle all aspects of your defense.
• Joseph D. Lento and his team can help negotiate a settlement if you need one. They are skilled in the art of negotiation, and they know how to get you the very best possible outcome.
• Joseph D. Lento and his Education Law Team will keep a complete record of absolutely everything that happens in your case. They can raise objections along the way over how your school treats you. Just as importantly, the case record can lay the groundwork for a civil case if you should lose your Title IX hearing.
• Joseph D. Lento and his team can also deal with the media on your behalf. Title IX doesn't guarantee your confidentiality, but they can remind the school that it should do everything it can to keep your identity concealed. If the case should become public, though, they also have experience dealing with the media and making sure you are treated fairly.

In practical terms, then, what can you expect Joseph D. Lento and his Student Defense Team to do?

• Even before you've been accused, they can make sure the school knows your side of the story.
• They can negotiate with campus police to keep you from being publicly arrested.
• They can prepare you before you talk to the investigator. They can make sure your story is straight and coach you on how to remain calm.
• They can go with you to investigative interviews and advise you when to talk and when to stay silent.
• They can help you collect evidence in the case, including witness testimony.
• They can help you look over the investigator's report and respond to any errors.
• They can help you prepare your defense strategy.
• They can sit by your side at the hearing and advise you every step of the way.
• They can examine and cross-examine witnesses on your behalf.
• They can help you decide which evidence to present during the hearing.
• They can raise objections on your behalf.
• They can help you write out and file an appeal.
• They can handle media inquiries.
• They can represent you if you're charged by the police.

Choosing an Advisor

By this point, you know you need an attorney to handle your case. You need to know one more thing though: not just any attorney will do. Many students immediately seek out a family or local attorney. That seems logical at first glance. In fact, a local attorney may even tell you they're the best person to defend you. First, you're going to have to talk about intimate details of your life, and who wants to do that with a stranger? A local attorney may also know faculty and administrators on campus. Certainly, they'll be familiar with the prosecutors and judges in your community.

There are some big problems with this logic, though.

• First, Title IX is a federal law. Local attorneys are great with state and local law. They aren't typically well-versed in federal law.
• In fact, Title IX isn't just any federal law. As we've pointed out, it has a unique history. Among other things, it's the subject of frequent political debate. A local attorney won't be up to date on recent changes to the law, and certainly won't know how to anticipate the changes that might be coming.
• Campus hearings are not court cases. There are no prosecutors. You won't be dealing with a seasoned judge. More likely the entire process will be handled by faculty, administrators, and even other students. Local attorneys understand local judicial systems, but they don't have the experience it takes to navigate campus judicial systems. They may, in fact, believe a campus case will be simpler than a court case when the opposite is true. A Title IX cases isn't just about knowing the rules and following the procedures. It's about knowing that a school has wide latitude in investigating an allegation and using subtleties in the law to help make sure you get every advantage you can.

Of course, the biggest reason students hire local attorneys is because they're local. A local attorney can seem like the most obvious choice. You don't have to think about that choice much. You see all those shingles hanging on Main Street and it's easy to just pick one. Keep in mind, though: your case is governed by federal law, not state. That means there's really no advantage to hiring an advisor from your state. In fact, there are quite a few downsides to doing that. You want the best attorney, not the one that's closest to you.

Of course, that begs the question: what makes an attorney qualified to handle a Title IX case? The simple answer is “Title IX attorneys.” They're lawyers who have devoted their careers to this particular law. 

Trust Joseph D. Lento and his Team

Let's not beat around the bush: a sexual misconduct allegation is scary. You don't know why you've been accused; you're worried the accusation might become public; you can't know which of your friends will take your side and who will turn against you.

What can you count on?

You can count on Joseph D. Lento and his Education Law Team. You can count on them to know exactly how Title IX cases work. You can count on them to know how to talk to faculty and administrators. You can count on them to have the experience to anticipate anything that might come up.

Most of all, though, you can count on them to be on your side. Whatever your situation, Joseph D. Lento and his team believe in you, and they're committed to making sure you're treated fairly and that you get the best possible resolution to your case.

To find out more about what Joseph D. Lento and his team can do for you, contact the Lento Law Firm today at 888-555-3686, or use our automated online form.