University Campus Sexual Assault Disciplinary Proceedings
Sexual assault on university campuses has long been a huge and underreported
problem, but recently, the topic has received a tremendous amount of press
coverage. As a result of this - as well as
a spate of Title IX lawsuits alleging that universities have failed to
make campuses safe from rape - schools have been frantically overhauling their investigative procedures
and retraining its investigators. Unfortunately, the pendulum has swung
so far in the other direction that
the rights of the accused are being trampled and false or trivial accusations are oftentimes now presumed to be legitimate.
False accusations do happen - consider the cases of the Duke lacrosse
team or the recent
accusation at the University of Virginia – and they can ruin innocent lives and reputations.
Of course, an accusation of sexual misconduct can have huge consequences
for the accused beyond mere academic suspension or expulsion: criminal
charges or civil lawsuits can ensue and be even more terrifying and damaging.
Thus, it's critical for an accused to mount a vigorous defense from
the outset to both prevent career-derailing academic punishments and discourage
the complainant from pursuing the matter in any other forums (such as
the criminal justice system).
Mounting an effective defense to a sexual misconduct investigation should
not be attempted without experienced defense counsel because they can
be particularly difficult for four main reasons: first, the investigators
and judicial panels are often unqualified and biased; second, the criteria
for discipline is oftentimes vague; third, the evidence under review can
be surprisingly limited in scope; and fourth, the standard of proof for
an adverse finding is much lower than in a criminal trial.
To begin, the investigators assigned to respond to complaints are typically
well meaning but unqualified people with an agenda. They volunteer to
investigate sexual assault reports because they want to help victims and
punish perpetrators, not because they want to prevent false accusations
from resulting in unwarranted discipline. As such, there is an investigative
bias that causes investigators to oftentimes overlook or even find excuses
for major gaping holes in a victim’s story, or worse, to completely
ignore innocent explanations or alibis from the accused. Moreover, whereas
the disciplinary panels assigned to decide guilt, innocence and punishment
used to be regularly accused of sweeping accusations under a rug to prevent
the school from appearing to have a problem with sexual assault, disciplinary
panels nowadays have to appear to be tough on sexual assault to avoid having
students carrying mattresses around campus. Accordingly, we are seeing a shift in institutional bias in favor of
complainants and to the detriment of the falsely accused.
Second, sexual misconduct regulations on university campuses can be shockingly
vague and sometimes seem to criminalize trivial conduct. "Non-consensual
sexual contact" would normally mean forcible compulsion or an intoxicated
or sleeping victim in a criminal court in New York, but in a university
campus setting, it might just mean that it was "coerced". This
does not sound unreasonable until you hear stories of university disciplinary
panels suspending students for telling their girlfriends that if they
do not give them sex, they will find new girlfriends. Under this scenario,
where the boyfriend suggests that he will terminate the relationship if
there is no sex, and then the girlfriend acquiesces, she forms what could
later be a basis to bring a "coercive, non-consensual sexual conduct"
complaint against her ex-boyfriend that could result in his suspension
from school. We have also seen student "victims" claim to have
been "forced" to have sexual contact with former (not current)
professors because of the "power dynamics" involved in a student-professor
relationship. These are the sorts of things that can pass as sexual misconduct
worthy of ruinous academic suspension or loss of tenure in the modern
university setting, believe it or not.
Third, disciplinary panels are sometimes strangely restrictive in the evidence
that they will consider. Citing the newly popular mantra that "prior
consent does not equal consent for all acts," disciplinary panels
now routinely exclude evidence that the complainant previously consented
to (or even requested) sexual contact with the accused. While this may
be true, it can cause inexperienced disciplinary panels to make nonsensical
decisions like excluding evidence that the complainant specifically requested
sexual contact with the accused both before and after the allegedly non-consensual
act. (Of course, this sort of evidence would be clearly relevant as to
the issue of consent and would be admissible in a criminal case.) An experienced
criminal defense attorney can help make arguments about what evidence
should be admissible and considered by the disciplinary panel by citing
to evidentiary rules and practices in criminal and civil courts.
Lastly, people facing accusations of sexual misconduct in university disciplinary
settings are frequently surprised by
the lack of due process and low standards of proof. There is not necessarily a presumption of innocence
in these proceedings as there would be in a criminal court. Also, whereas
a criminal court would require "proof beyond a reasonable doubt,"
the university can suspend someone for a violation where it finds that
the claim is supported by the civil standard of a "preponderance
of the evidence." In a he-said-she-said scenario, unfortunately,
some university administrators are concluding that the standard is satisfied
if she said it. Thus, it is important for an accused to realize that simply
demanding that the victim prove his/her complaint is really not a good
strategy in these proceedings - a counter-attack normally has to be launched
in order for the accused to prevail.
If you or a loved one have been falsely accused of committing a sexual
assault on a college or university campus, you should strongly consider
contacting the experienced criminal defense attorneys at Galluzzo &
Arnone LLP. Their attorneys have successfully represented and advised
students and faculty in university sexual assault and misconduct investigations
and have overturned convictions and
won trial acquittals in cases involving criminal charges stemming from
alleged campus rapes. In particular,
Galluzzo & Arnone partner Matthew Galluzzo is a former Manhattan sex
crimes prosecutor who brings instant credibility to any sexual assault
investigation. In fact,
the South African government previously hired him to train its prosecutors
and police officers in modern techniques pertaining to rape investigations and he has been quoted countless times as an expert in rape investigations
by news outlets including the New York Times and Fox News, among others.
Give him a call to schedule a consultation today.
university sexual assault