Title IX sex assault cases are handled by an educational institution as an administrative matter, not by a state court as a criminal matter. That means the accused person cannot face criminal punishments such as prison time and fines, but rather academic discipline such as suspension or expulsion. It also means the accused lacks many legal rights which he or she would have in a court of law.
Colleges and universities aren't concerned about this. They're concerned about not being sued by alleged victims — or in some cases by the accused. They're also concerned about money. They don't want to be fined by the government or even lose federal funding — funding which compels them to observe Title IX's rules against discrimination of any kind based on sex. As a result, some institutions have bent over backwards to pursue any and all complaints of sexual assault on campus aggressively, often with heedless disregard for their veracity and callous unconcern for long-held American legal principles, including the presumption of innocence.
As Harvard Law professor Jeannie Suk Gersen told The Atlantic:
"In renewing their attention to the rights of alleged victims of sexual assault, many (schools) began to disregard the rights of accused students.
It has become commonplace to deny accused students access to the complaint, evidence, the identities of witnesses or the investigative report, and to forbid them from questioning complainants or witnesses."
Such things make a mockery of every American's right to due process and protections under the law. You may not even receive your constitutional protection to have a lawyer.
Another key difference between a Title IV proceeding and a criminal justice courtroom is the fact that the burden of proof in a Title IX disciplinary hearing depends on a "preponderance of evidence." This low standard of proof is in sharp contrast to a criminal court's higher standard of requiring "clear and convincing evidence" to reach a verdict.
Preponderance of evidence only requires that there's more than an even chance — perhaps just above 50 percent — that a complaint is justified and a defendant is guilty. By contrast, clear and convincing evidence means evidence must be highly and substantially probable to be true, and there must be a firm belief in its truth. Imagine your son's fate being decided by a tiny shred of evidence tilting the decision toward a 50.1 percent chance — a so-called "preponderance of evidence" — that the charge is accurate.
That's right: If a Title IX hearing concludes the evidence weighs even slightly against your son, that 51 percent means he can be found to be 100 percent at fault and punished accordingly.
Indeed, it's almost as if the stacked deck of a Title IX investigation, hearing and disciplinary action should be labeled: "Rights? What rights?"
In a criminal case in a courtroom, a defendant has constitutional protections, including the right to an attorney, which a Title IX procedure may not allow. Courtroom defendants also have a right against self-incrimination, the right to confront their accuser, to a speedy trial and a jury trial.
That's not to say a Title IX defendant should seek a criminal trial, which would occur only by adding a criminal charge, in order to seek fairer treatment. Rather, it's to say that the Title IX system a defendant must face weighs heavily against the accused.
It means you must confront a Title IX sex assault complaint with the full forces available to you — starting by consulting an experienced and knowledgeable Title IX defense lawyer.
Yes, even in the kangaroo court-type setting of a Title IX hearing, legal rights still apply — or can be applied by a skilled Title IX discrimination lawyer.
In fact, a recent analysis of federal court findings by the Detroit Free Press showed significant concerns with independent Title IX investigations and disciplinary hearings. As a result of this report, the legal battleground may be shifting toward protection of defendants' legal right of due process, despite the onerous burdens imposed on them by overzealous universities.
As for what is due process, it's provided by the Fifth Amendment and Fourteenth Amendment to the U.S. Constitution to ensure that a person's rights are protected against arbitrary denials of life, liberty or property. Due process compels courts and governing bodies to provide an appropriate administration of justice.
Such due process rights are especially important in criminal cases for such charges as sexual assault. That's because a defendant, if convicted, may face severe punishments such as loss of freedom (due to a prison sentence) and loss of assets (due to fines).
Many federal lawsuits filed by students accused of Title IX sex assault have argued that such due process rights were not upheld by universities in their Title IX proceedings. And some universities are losing such lawsuits, or at least have presiding judges rule against them when they file motions to dismiss the lawsuit.
More and more, courts are finding that Title IX proceedings discriminate against defendants, especially accused male students who are often treated as guilty even before an investigation has begun.
Perhaps one day a landmark case of Title IX discrimination will make its way to the U.S. Supreme Court, where standards could be formally set to protect the legal rights of the accused.
Until then, differences between Title IX investigations and court proceedings are underscoring the problem, which remains.
This may make it necessary for your family to engage a skilled, knowledgeable and experienced Title IX defense lawyer to handle your family member's case.
In a Title IX proceeding, you may be wondering if you can get a defense lawyer to stand up for you. Though administrators at an individual institution may discourage you from engaging legal counsel, you should always seek the best Title IX defense lawyer you can find.
For those facing a Title IX discrimination case and living in Fort Bend County, Montgomery County, Houston or the rest of Harris County, such help can be found at the Neal Davis Law Firm.
"Neal represented our son and the case against him was dismissed...Neal took time to understand our needs and truly appreciate our values and to convey to the Court...the case details and the circumstances of how our son was himself victimized...our son, who is an honor student, was completely exonerated."
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