The Department of Education recently released new policies and procedures for American colleges and universities to follow in investigating allegations of sexual assault and sexual harassment involving its students. Generally speaking, the new policies afford more protections for accused students than were required under the Obama-era Title IX policies, and victims’ rights advocates are already decrying the changes.
The biggest changes in the policy involve 1) granting accused students the right to cross-examine and confront their accusers (though not personally), 2) establishing that the standard of proof for a finding of guilt may be either “clear and convincing” or a “preponderance of the evidence,” (matching civil law standards, generally) , and 3) and redefining the meaning of “sexual harassment” to align with the U.S. Supreme Court’s definition: “sexual harassment” is unwelcome conduct that is “so severe, pervasive and objectively offensive that it denies a person equal educational access.” (Under the Obama administration, sexual harassment was more broadly defined as “unwelcome conduct of a sexual nature.”)
These changes will have a huge impact on Title IX sexual harassment/assault proceedings on college campuses. Previously, in connection with complaints of sexual assault to school administrators, student/complainants would give their version of events (one way or another) during an investigation and/or hearing, and the accused would have the ability to give his/her version of events. However, there would be no confronting of the witnesses by the adverse parties. Moreover, the standard of proof was so low, the administrators so risk-averse and generally sympathetic to victims, and the elements of an actionable offense were so broad that successfully defending against these accusations was exceptionally difficult. As a practical matter, accused students generally lost and were disciplined or expelled. However, many students complained that the trials were akin to the Salem witch trials, with no due process and no real chance to win. Indeed, lawsuits were filed by accused students in federal courts across the country, and so many of them persuaded courts that they had been denied due process during Title IX investigations that these changes by the current administration may have been an inevitable response to the litigation.
Victims’ advocates are complaining that these new measures will prevent complainants from coming forward, thus increasing the frequency of sexual assault on campus. There may be some truth to this concern, admittedly. Of course, our criminal justice system would also find it much “easier” to prosecute and convict criminals if there were no juries, constitutional rights, or defense attorneys. These victims’ advocates perhaps fail to acknowledge that our criminal justice system provides those protections, thankfully, to prevent rampant abuse of the system by untruthful complainants and to ensure that innocent people are not punished for things they did not do. Within the context of Title IX, it only seems fair that students accused of “crimes” should not lose their valuable educational “rights” without some similar due process. Some victims’ advocates promote the mantra “Believe Victims,” but to pretend or believe that every complainant is honest and truthful would require one to have no actual experience in the field. Thankfully, our lead attorney is a former Manhattan sex crimes prosecutor and longtime criminal defense attorney with significant experience in these matters.
We have represented university students who have been the victims of flat-out false complaints. These complaints were made for a variety of terrible reasons, and live cross-examination will make it easier for falsely-accused students to demonstrate these issues to the administrators. The introduction of cross-examination also makes the advice or assistance of a seasoned criminal defense attorney – whose stock and trade is cross-examination – even more important than before in this process. Keep in mind that the new rules will permit cross-examination (with serious restrictions to prevent the questions from becoming abusive), but the accused themselves will not be permitted to perform the cross-examinations so as to prevent that uncomfortable confrontation/conversation between accused and accuser. As such, an attorney will almost have to be employed to perform the cross-examination on behalf of the accused student. Accused students should not be relying upon pre-law student friends or random uncles to cross-examine their accusers with so much at stake.
Other complaints are just frivolous, and the more strict definitions of “sexual harassment” should restore some sanity. Our office once represented a promising male college student at a prestigious NYC-area university who went on a date with another student. They had an enjoyable date and drank some alcohol and then back to her dorm room. There, they had an admittedly consensual “make out” session on her bed. However, the woman later reported him for sexual assault because although their kissing was consensual, he had touched her breast without asking first. As a result of this complaint, this exceptional student who had worked hard to get into this school (and whose parents had paid a fortune to send him there), faced possible expulsion, discipline and/or negative notations on his transcript that jeopardized his ability to get into graduate schools. Although his actions might have technically been in violation of school policy, the student benefited from the assistance of a credible attorney who was not afraid to face and talk sense to social justice warriors working for the university. Defending a young man with a similar set of facts to his allegation should be easier under the current definition of “sexual harassment”.
If you or a loved one have been accused of a sexual assault or sexual harassment on campus, you should strongly consider contacting the Law Office of Matthew Galluzzo PLLC. Mr. Galluzzo is a former Manhattan Sex Crimes Unit prosecutor and a longtime criminal defense attorney with numerous trial victories in difficult and high profile rape and sexual assault cases. He and his colleagues have also helped many students accused of Title IX violations, and are prepared to help you and your family.