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.