Sexual misconduct allegations are incredibly serious, and we want them to be treated as such by everyone involved. However, the Title IX process used by most California schools and universities to handle these cases is not without problems of its own. This article explores these processes, which attempt to create a fairer and more effective process for all, including:
Once an accusation has been made and a Title IX claim launched, some consequences are inevitable. Due to the nature of the situation, these often fall on the accused.
First and foremost, a student who has been accused of sexual misconduct will most likely be asked not to return/stay on campus and be forbidden from attending classes and events. In some high schools, they may be allowed to continue going to some classes but often will have other restrictions, such as being limited to one side of the school and not being allowed to attend school events like football games.
During the pandemic, students forbidden from attending classes had the option to follow them online. But that is becoming increasingly rare once again, or even forbidden alongside physical attendance. If you have already paid for one or more classes, your best hope is to try to get them refunded. It is likely to cost the accused significantly in time, money, and the trajectory of their education, even in the best-case scenarios.
This is all because, while there is the presumption of innocence, the school is too afraid of liability and, somewhat understandably, has to err on the side of caution. Unfortunately, this also results in a situation tantamount to a presumption of guilt, at least until you get in touch with an attorney who can help them put it in perspective.
In psychology, there is a term called confirmation bias. It occurs when we interpret real-world evidence according to a previously held belief.
Take a sports analogy. Imagine you are at a Warriors game and you see Steph Curry hit a shot or go for a basket, but he gets pushed, and the referee calls a foul. For one team’s fans, that will be a good call because it fits with the narrative they want and expect. For the other team, it is likely a bad call because it goes against their belief.
Unfortunately, this principle also applies in law enforcement, especially when it comes to sexual assault. There is a very understandable belief that when someone comes forward and says somebody had sex or touched them sexually without consent, they must be telling the truth. Why would they lie or make that up?
Therefore, the presumption is that they are telling the truth, even when an investigation reveals something inconsistent that does not make sense. Such as the location being wrong or the alleged victim had also been drinking and engaged in something contributory. No matter how many red flags there might be that they are not telling the truth, confirmation bias may prevent doubt during a sexual assault allegation.
For example, consider an instance where someone said that their alleged aggressor locked the door and took all their clothes off. We find out later that the doors did not even have a lock and that the clothes were never taken off. But the prosecutor in the investigation might never challenge that because they presumed that once the allegations were made, that was enough.
Even if there is a physical impossibility, it does not get explored. This can represent a clear bias against the aggressor throughout the process.
Due process under the law is a fundamental right for anyone accused of any crime in the United States. However, a strict interpretation of that only applies to the criminal justice system. College and University Title IX claims investigations do not need to, or choose to, follow the same rules.
Each one has a different massive manual, 50 pages or more. Every school manual says it offers due process under Title IX, but there is always a caveat, especially when it comes to the role of the “advisor,” which really is the attorney for the accused.
Some will not allow them to cross-examine the accused but will allow written questions for the hearing officer to ask, which is better than nothing. Some schools will not even allow that. They only allow the advisor to sit in the room and listen, maybe speaking to the accused. This would never pass as due process in a court of law.
If anyone accuses you, your child, or someone in your family of sexual misconduct, you want those accusations to be challenged, ideally by an attorney who has your best interest in mind. Unfortunately, hearing officers are often people who work with the school and have a definite lack of objectivity in the process.
Schools and their rules are very clear: the accuser and the accused are not to talk about the allegations, case, or results with anybody. If they do, they are in violation of the protocol and due process.
Unfortunately, the school cannot put someone in jail for violating a school order. In court, you can go to jail if you violate a court order on a criminal case. But schools lack the power to punish those who break this agreement.
Lately, this has often occurred on social media. Once someone finds out, they tell someone else, and soon enough, entire forums are being set up about the accused. Now a group of complete strangers, or worse, friends from school, are discussing whether or not they are a rapist.
Worse, there is no way of reaching out to those people and asking them to stop. They have a First Amendment right to free speech, and they are just discussing rumors or speculation.
An experienced attorney can try, but there is no reliable way of shutting it down completely, despite what the Title IX rules or investigation say. So even while all of the investigation is confidential, it leaks; and when it leaks, there is really no way of stopping it.
If you or a loved one have been accused of sexual misconduct under Title IX at a school or college, it is time to hire an experienced legal guide and attorney. For more information on Due Process And The Accused’s Rights In A California Title IX Case, an initial consultation is your next best step.