Students accused of sexual misconduct will get stronger due process protections under sweeping federal rules announced on May 6, 2020. Title-IX-Final-Rules This is a very positive thing for students accused of sexual misconduct.
When someone is accused of a crime, they have the right to confront their accusers in court. They have the right to cross-examine witnesses. Hearsay evidence is not allowed. They have a right to an attorney, and they are afforded the presumption of innocence. The burden of proof is on the government and the standard is beyond a reasonable doubt. In a criminal case, the defendant has a right to discovery. Discovery being all of the evidence the government is using against them must be disclosed to the defendant.
In a Title IX Sexual Misconduct Hearing before May 6, 2020, basically none of those rights were afforded to a person accused of sexual misconduct. The 6th Amendment to the Constitution of The United States guaranteed the right to an attorney. The founding fathers of our country felt so strongly about that they put it in The Bill of Rights. Well, college disciplinary boards laughed at that. They gave the accused student a right to an “advocate” but almost every college in the United States refused a student the right to have a lawyer be their advocate. The very group of people trained to represent people accused of misconduct were purposely excluded from participating in the proceedings. At best, some colleges allowed a lawyer to be present at a disciplinary hearing and the only thing they could do is answer their client’s questions. The student had to ask their own questions. Totally ridiculous. However, that is now changed. Students can now hire lawyers to be their advocate and the lawyers are allowed to ask the questions. This is a huge victory.
Among other significant changes in the rules are:
- The burden of proof remains on the school and not the student accused.
- Schools must allow equal opportunity for both the accuser and the accused to present fact and expert witnesses.
- Schools must send both parties copies of the evidence directly related to the investigation and allow them no less than 10 days to inspect, review, and respond to the evidence.
- Schools must send both parties a copy of the investigative report with at least 10 days to review and respond to that report.
- Live hearings with cross-examination are required for post-secondary schools
- The hearing panel must permit each party’s advisor to ask the other party and their witnesses all relevant questions and follow-up questions including those challenging credibility.
- If either the student accused, their accuser, or their witnesses do not submit to cross-examination at a live hearing the hearing panel must not rely on any statement made by that person and they can not make any inference by that person’s absence.
- Schools must create audio or audiovisual recordings of the live hearing.
These rules may sound like a no-brainer and of course these rules should be in place. Take it from a lawyer who has represented students in College disciplinary hearings accused of sexual misconduct. These rules are refreshing to have. So called “hearings” in the past were nothing more than long slow findings of violations. Now with these new rules in place hearings will be fairer. However, make no mistake, the people who work for the universities and the hearing officers in these cases, usually university employees, have a vested interest in cracking down on sexual misconduct. A college’s funding can be put in jeopardy if they are not in compliance.
Sexual misconduct allegations should be investigated and fought just the same as if criminal charges were filed. In a lot of cases, sexual misconduct proceedings take place at the same time as criminal charges. Now that the rules allow for legal representation at misconduct hearings, these hearings and the reports generated by the university investigator can be used as a tool to help in the criminal case. So, it is very important if contacted by a college’s office of student conduct to not make any statement and contact a lawyer immediately. Never think you can just explain what happened and it will go away. If anything speaking to the school’s investigator or a police officer could make it worse.