Families Advocating for Campus Equality
Families Advocating for Campus Equality

Advice from Students

Advice from Students

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Advice from FACE Students

What to Expect and Do If You’ve Been Wrongfully Accused of Sexual Misconduct

This is a compilation of advice, thoughts, and reflections from FACE students who have been subjected to wrongful accusations of sexual misconduct or harassment on their campuses. [1] Its purpose is to prepare you for a process that may dispel everything you’ve learned about how a fair, transparent and unbiased adjudication should be conducted in America. [2]

One of the most important steps you can take right now is to inform your parents of the accusation. Then be sure your parents read the Advice from Parents as well as the Advice from Attorneys. These documents together provide critical guidance to help prevent your rights from being violated.

Above all, please know that you are not alone; there are over one thousand FACE students who have been in your exact position. Though they are mostly men, some are women as well as LGBTQ students. Reach out to them through FACE’s website contact form here.

What can I expect when I’m notified of a Title IX complaint against me?

We get it: you’ve been asked by a school official to come in and discuss a complaint made against you by another student. You might be told it’s a Title IX complaint and think “who could possibly be accusing me?” or “why would someone accuse me of something so vile?” You might suspect the complainant is someone you once dated or with whom you had a drunken hook-up, or you may have no idea who would make such accusations against you. After all, you’re a nice guy.

As the initial shock subsides, feelings of shame and confusion will quickly set in: “What if my friends or professors find out?” “Do they think I actually would do this?” “Will this go away?” “Could this be an encounter that has been taken wildly out of context?”

If you are like most of us, you are confused, overwhelmed and haven’t a clue where to begin. You’re going to have a lot of questions and a number of those will not be answered for some time. There is a long history behind how we’ve come to this place, but for now it’s important to focus on the following information on what to expect and steps you can take to protect yourself.

What you do over the next few hours, days, weeks, and months might mean the difference between graduation and expulsion. In order to successfully combat what is likely to be an uphill battle, you’ll need to substitute panic and confusion with planning; you’ll be much better equipped to fight a wrongful allegation if you can limit the emotional obstacles. It will take extraordinary resilience for you to put aside the stress and shame associated with a Title IX allegation and focus on the steps necessary to help you fight this battle. What you may have appreciated previously about sexual harassment and assault ideology and prevention efforts on your campus might now be turned against you.

Anticipate that you may become disappointed in your school, your professors, your coaches, and even other students. As your friends and acquaintances hear of the allegations, they might distance themselves. The student paper may report the allegation and it may be posted on the university website. Your accuser may post information about his or her claims on social media. Whether or not your name is used, students may learn your identity. You may be judged, isolated, and sometimes taunted and publicly humiliated.

Prepare yourself: it is not uncommon for accused students to be kicked off sports teams, booted out of a fraternity, or ejected from campus housing. This will add an immense amount of anxiety to your life, and you might feel as though your are drowning and become depressed. At this point you may even contemplate suicide; ignore those thoughts because you will survive this. And if you need reassurance, reach out to us through FACE, or try to attend a FACE Meet & Greet. [3]

First step, be smart: assemble a support team you can trust

Tell your parents

The first, and probably the most important thing you can do is inform your parents. We know this is difficult; after all, who in their right mind wants to tell a parent about a sexual encounter? But you must if you are to survive this experience. Not only does this have the potential to endanger your educational and future career goals, it is devastating to be accused of and have even your friends believe you are capable of sexual misconduct.

Believe us, we have been through hell, and those of us who did not contact our parents soon enough have regretted it. If you are concerned your parents won’t understand or will assume you’ve done something wrong, have them contact FACE.

Having some of your most ardent supporters in your corner will be invaluable both logistically and emotionally as you face school administrators, faculty and even police investigators. Campus systems that address Title IX violations are often result-driven; you will find yourself outgunned and overwhelmed if you attempt to navigate this alone.

Worse still, there may be criminal charges pending or filed against you. Being open with and trusting of school officials means EVERYTHING you say can be disclosed to law enforcement and used against you in a criminal proceeding. There is no criminal statute of limitation for sexual assault in most states, so those charges can come at any time. This information can also be subpoenaed and used in a civil lawsuit.

If you think you are savvy enough to phrase your comments and responses carefully, think again: we’ve had seemingly innocuous statements used against us. Our advice: don’t apologize for anything, not even a generic or general apology; [4] do not call it a “misunderstanding” because you will be told it was your responsibility to ensure you obtained unequivocal consent. Such statements will only be taken as evidence of your guilt and used against you.

Hire an attorney, if at all possible

Informing your parents immediately after receiving notice of a Title IX complaint can also accelerate the next step in defending yourself: retaining an attorney. If you are represented by an attorney, always follow your attorney’s advice if it conflicts with any recommendations in this document.

Don’t hesitate to ask your school for extensions, if necessary, to find an attorney. Submit a written request and be sure to document any refusal as explained in section 2. below.                                                                      

We recommend hiring an attorney who specializes in defending students against Title IX violations. This could be critical to an finding in your favor because an experienced attorney will offer specialized knowledge of the campus administrative hearing process and can help you address any potential criminal charges that may arise from the complaint. [5] An attorney’s presence might also incentivize school officials to follow their procedures more carefully.

If you cannot afford an attorney it is more important that you contact FACE as soon as possible. FACE will connect you with other students and families who have experienced this nightmare, and who can offer you recommendations and advice based on their own experiences. Additionally, in a very limited number of cases FACE has found attorneys or advocates who will consult with or sometimes represent students at a reduced rate.

If your school assigns you an adviser, even if you’ve had a previous relationship with that individual, be aware that he or she is still employed by the school and may have an obligation and/or feel a loyalty to report back to the school. Assume that any communication you send and anything you discuss with such a person is being shared with the Title IX office.

Second, and most importantly: never speak to any school official by yourself

Do not trust school officials

Regardless of how comfortable university officials attempt to make you feel about speaking to them, and no matter how sincere their reassurances that your honesty and openness will ensure a better outcome, we recommend you start by not trusting them and always be accompanied by an advocate, or at the very least a witness.

Yes we know, this is your school too, and you believe loyalty flows both ways. But there are societal and political pressures at hand that you are only beginning to understand. School officials who may have expertise in adjudicating academic violations are pressured in many ways to assume those who complain of sexual misconduct are “survivors,” and that students are very rarely accused falsely. These pressures will drive school officials, students, and even your friends to assume you are guilty. We know because we’ve been in your shoes.

Be sure to inform the Title IX office of any disability accommodations to which you are entitled. The stress of enduring a Title IX process is likely to exacerbate your disabilities and make it difficult to concentrate on school work. In addition to any required accommodations you should ask for extensions of time, tutors, and the like.

Insist you be informed of the who-what-when-where of the allegations before any meeting

If you’re asked to meet or have a call with someone in the Title IX or a dean’s office, ask what is the meeting’s purpose. If you are informed merely that it involves a complaint made against you, don’t be afraid to insist on knowing details such as who is making the allegations, when and where the alleged event occurred, and the specific misconduct described in the complaint.

If school officials insist you must come into their office or participate in a call before they will inform you of the allegations, consider doing the following: [6]

1. document the school’s refusal to disclose detailed information about the complaint. For example, send an email that says: “I am confirming that you have denied my request to be informed of the allegations against me prior to our meeting regarding those allegations [add date and type of meeting or hearing, etc., if known], and next ….

2. inform the school you must be accompanied by an advocate at the meeting: “Please be advised that, under these circumstances I will need to be accompanied by my [advocate.]”

If and when you are informed of the complaint details, refrain from making any comment whatsoever until you’ve had the opportunity to consult with your parents, an advocate, or an attorney.

Do not attend any meetings without an advocate

Whether or not you’ve been informed of the allegations against you, we strongly recommend you never attend any meetings or participate in any phone calls with school officials until you can be accompanied by a parent or advocate. At no time should you meet or speak with law enforcement or campus security without an advocate, preferably an attorney, present.

Don’t be afraid to ask for an extension of time to find an advocate if necessary, and document any denial of this in writing. For example, you might email the Title IX official that: “I want to confirm your denial of my requested extension of time to obtain an advocate who will attend the [date and type of meeting / hearing, etc.] with me.”

If you’ve been refused extra time it is extremely important that you consult an advocate as soon as possible. School officials will tell you “don’t worry, just tell the truth and you will be fine,” “you don’t need to call your parents” or “you don’t need an attorney”; many of us have heard these empty reassurances only to be blindsided by one-sided investigations and unfair hearing results.

Do not use your school email address

School officials most likely have access to your school-issued email account.

Important next steps; lay low

Don’t discuss your case with anyone else

Being smart also requires that you don’t discuss your case with anyone on campus. You may feel the need to explain your “side” to friends, professors or other members of the educational community; don’t. The shame of the allegation will have you believe that simply by detailing your experiences of the allegation to those who have doubts will lead to your vindication, but it may also exacerbate the likelihood of a flawed investigation. No matter how much you “know” you shouldn’t be charged with a Title IX violation, sometimes explaining your position can lead to disclosing information that may implicate you further.

Never communicate with the complainant and do not respond to any requests from the complainant for contact. He or she may try to force you to incriminate yourself and contacting the complainant may also be considered retaliation. Violating no contact orders will subject you to additional charges. No matter how much your accuser pleads with you to speak with him or her, avoid the urge.

Not speaking with others is especially important because there is no assurance criminal charges will not be filed against you. This is particularly true if you have not yet been informed of the specific allegations. Anything said to university administrators, campus security, or even students and professors can be subpoenaed for use in subsequent civil or criminal court proceedings.

Anything you say to anyone can be used for these purposes regardless of how comfortable university officials attempt to make you feel about speaking to them, and no matter their reassurances that openness will ensure a better outcome.

Close all social media accounts

Shut down Facebook, Snapchat, Instagram, Twitter or any other social media accounts. Everything on those sites may be intended as innocent fun but can be used against you. You and your complainant may have mutual friends who are spying on you and/or your social media.

There is an additional danger with these sites if you are attending or applying to transfer to another school. FACE students have had offers withdrawn and students dismissed from their transfer schools.

Educate yourself

Read your school’s sexual misconduct policies

You will begin to overcome the confusion and uncertainty as you become more familiar with your school’s process and the facts of the complaint made against you. Be aware that school policies are sometimes separated into different sections of a school’s website. For example, the procedures for adjudicating claims may be in a different section than the definitions of what constitutes sexual misconduct or consent.

Under the recently proposed Title IX regulations and some court decisions, you may be entitled to a live hearing during which you are given the opportunity to have your accuser questioned. [7] Unfortunately some schools still have a very problematic process known as a “single investigator model,” that allows the investigator also to decide your guilt, or offers a hearing only on appeal from a responsible finding. This process reeks of confirmation bias, and has resulted in many lawsuits and some critical court decisions.

Be sure you know exactly what you are entitled to under your school policies, especially if your school is a private one, because the school’s failure to comply with its own rules can be a breach of its contract with you. However, if your school is public you may have constitutional rights to a hearing and be able to question your accuser through an advocate, depending on the state in which your school is located. You can find out more about this through FACE or by reading the FACE NPRM TITLE IX COMMENT. [8]

Consult experts, guides and other authorities

Read the KaiserDillon Guide to Representing Yourself in a Campus Sexual Assault Case, [9] and FIRE's Guide to Due Process and Campus Justice, [10] both excellent sources of information about the best way to defend yourself from sexual misconduct allegations on campus. Also read the Policies and mandates issued by the Department of Education’s Office for Civil Rights listed in the Appendix.

Build your case: collect evidence and identify witnesses

Keep a record of all communications with the school

It is imperative that you keep a record of any and all communication made by or between you and an official of your institution. Ask for all information in writing and confirm by email any verbally conveyed information, as discussed in section 2. above.

You also can ask that meetings be recorded, and may be entitled to this if you have a documented disability. Though this request is likely to be denied, make sure any denial is confirmed in writing.

Consider recording conversations by phone or in person without consent only if it is legally permissible to do so. Many states have laws that make this a crime unless both parties to the conversation consent. Consult an attorney to find out whether the state in which you are located (and the state to which you may be calling, if different) is a “one party consent” or “two party consent” state: one party states don’t require asking permission to record someone, while two party states do.

Collect and retain as much evidence as you can find to support your case

A Title IX violation at your educational institution can lead to a lengthy suspension or expulsion. Therefore, it is crucial to the outcome of your hearing that you collect and retain as much evidence as possible to support your version of events. This includes evidence that undermines the accuser’s claims, but may also involve evidence of his or her motivation to fabricate or exaggerate the allegations.

Start by taking an inventory of all communications between you and your accuser: Snap Chat, Twitter, Instagram, Facebook, etc. Save in a separate file all relevant text messages and emails as they may be vital in finding you not responsible. Look for photos and even receipts or other information that may help your case by, for example, proving you were elsewhere when the incident occurred. Pay attention to key card swipe records, phone records, taxi/Uber receipts and any other potentially relevant documentation.

Beware of evidence that may be destroyed; for example, security camera footage (both university and commercial, e.g., Starbucks), because video evidence can undermine your accuser’s claim that he or she was severely intoxicated.

Consider potential witnesses

Although you should not initially discuss your case with anyone who is not a parent, advocate, or an attorney, you should create a list of potential witnesses who may have observed the events alleged in the complaint. If you are concerned about contacting those witnesses yourself, hire an investigator to do this on your behalf.

Witnesses may include those who observed you and/or the accuser before or after the alleged events. Witnesses might also support claims that the accuser has a motivation to fabricate or exaggerate his or her claims. This can occur for many different reasons including: retribution, discovery of infidelity, to appease friends, or to explain why the accuser is failing a class.

The identification of witnesses could be crucial if your school gives you the opportunity to present evidence and witnesses at a hearing as discussed above. Be sure you know exactly what you are entitled to under your school policies, especially if your school is a private one, because the school’s failure to comply with its own rules can be a breach of its contract with you.

If your school is public you may have constitutional rights to a hearing and be able to question your accuser through an advocate, depending on the state in which your school is located. You can find out more about his through FACE or by reading the FACE NPRM TITLE IX COMMENT. [11]

Things to keep in mind throughout the process

Document every failure of your school to follow its own procedures   

It is important that you document every deviation from your school’s procedures. This information could be helpful in a potential lawsuit or a complaint against the school filed with the Department of Education’s Office for Civil Rights. [12]

Report any hostile environment created by the complainant and/or her friends

If your accuser is defaming, stalking or harassing you on campus, make sure to immediately tell university staff in writing. Inform them that this is creating a hostile educational environment for you.

Interim restrictions and academic accommodations should be equally applied

You have an equal right as your accuser to access your education. If a temporary no contact order or other restrictions are issued against you, ascertain whether they are being implemented equally, and demand in writing that these restrictions not interfere with your educational access,.

Also request academic accommodations and document any refusal to provide them. Take advantage of any disability accommodations to which you are entitled and be sure the Title IX office knows about these rights. The stress of enduring a Title IX process will make it difficult to concentrate on school work.  Ask for extensions of time, tutors, and the like.

Please take care of yourself

Seriously consider getting help from a mental health professional, because you may well experience severe emotional distress. Most of us have at one time or another throughout the process. Remember though, a mental health professional’s records can be subpoenaed in a subsequent lawsuit.

You have to look after yourself. Lean on your parents. This can be a long and difficult process. If your presence on campus becomes intolerable, ask to take a medical leave.

Try to keep a normal routine, eat healthy meals, and go to the gym. Remember that in the grand scheme of your life, this just a blip and plenty of students have been suspended or even expelled from college for many different reasons.

You probably will be angry for a very long time, but learn to channel it into something productive. If you can’t find an internship or job, then volunteer for a group like AmeriCorps or with a local organization in your community. Think creatively. Some students have completed college in other countries, others have chosen a new career, many in the legal field s a result of their Title IX experience. Use your own experience to create a passion for helping others.

Connecting with other FACE students will show you not only that there are situations that are much worse than yours, but also that there will likely be a way for you to move forward. It may be a different path, but there is almost always a way.

And finally, never, ever give up

In recent years, more and more students have been able to minimize and even overcome not only educational and career impact of a false allegation of sexual assault, but the associated stigma as well. Although it will take time and there will be periods of darkness, many have found a light at the end of the tunnel.

There is no guaranteed path to a not responsible determination in a campus Title IX process, but you can put yourself in a better position by following our advice and keep the fight going.

  

Last Updated on March 19, 2019


FOOTNOTES

[1] Though the vast majority of FACE students were attending college or university when accused, we also have been contacted by high school, middle school, and even a few elementary school parents.

[2] However, please remember that FACE does not engage in the practice of law, cannot provide legal advice or representation, and does not enter into attorney-client relationships. Although there may be opinions about legal issues offered in this document, those opinions should not be relied upon as legal advice and should never replace the advice of an attorney. Any time your attorney or advocate provides advice conflicting with what we suggest here, please follow your attorney’s or advocate’s advice.

[3] FACE organizes biannual weekend Meet & Greets at locations throughout the country where families and students come together to hear speakers, share stories and receive advice. There often are scholarships available for those who cannot otherwise afford to attend.

[4] Even “I’m sorry you feel that way” or “I’m sorry I hurt you” will be interpreted as evidence of guilt.

[5] While FACE cannot recommend any specific attorneys, your Outreach contact may be able to give you a list of attorneys who have represented other accused students. If you have not yet spoken to FACE Outreach, complete the contact form on our website at https://www.facecampusequality.org, or leave a message on the phone number provided. Be aware that criminal attorneys often recommend the student not respond to school requests, which may make sense if there is a potential criminal action. A lawyer experienced with Title IX can help your student navigate the school’s process while preserving his or her rights.

[6] Again, any time your attorney or advocate provides advice conflicting with what we suggest here, please follow your attorney’s or advocate’s advice.

[7] The parameters of this “cross-examination” are not yet clear. For an understanding of the current law and the proposed regulations, see FACE NPRM TITLE IX COMMENT, 

https://www.dropbox.com/s/2h4zlr876j4cmky/FACE%20NPRM%20TITLE%20IX%20COMMENT%20Docket%20No.%20ED-2018-OCR-0064%20ed..pdf?dl=0

[8] Id.

[9] KaiserDillon Guide to Representing Yourself in a Campus Sexual Assault Case, https://kaiserdillon.leadpages.co/campusdefense/

[10] FIRE's Guide to Due Process and Campus Justice, https://www.dropbox.com/s/cp8ybiwlsbnemnt/FIRE%27s%20Guide%20to%20Due%20Process%20and%20Campus%20Justice%20%E2%80%94%C2%A02019%20-%20FIRE.pdf?dl=0

[11] Id.

[12] If you feel the school has discriminated against you based on your sex, you also can file a complaint with the Department of Education’s Office for Civil Rights. This complaint must be filed within 180 days of the school’s final decision that harmed you. FACE can provide information about this process.


APPENDIX

Policies and mandates issued by the Department of Education’s Office for Civil Rights

Though the problematic April 2011 "Dear Colleague" has been withdrawn by Education Secretary Betsy DeVos, many schools still insist they will continue to follow it and some states are attempting to codify its terms into state law:

Dear Colleague Letter, April 2011 (2011 DCL) http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html

In September 2017 Secretary DeVos issued new guidance, which you should read carefully, even though many schools have refused to consider it mandatory:

Dear Colleague Letter, September 22, 2017, https://www2.ed.gov/about/offices/list/ocr/sexharassresources.html

Q&A on Campus Sexual Misconduct, September 22, 2017, https://www2.ed.gov/about/offices/list/ocr/sexharassresources.html

Also know there are other previous guidance documents which are still in effect:

1997 Sexual Harassment Guidance, http://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html

1999 Checklist for Addressing Harassment,

https://www2.ed.gov/about/offices/list/ocr/checklist.html

Revised OCR Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third parties, January 19, 2001,

https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

Dear Colleague Letter, January 25, 2006,

https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html

2008 Sexual Harassment: It’s Not Academic (Pamphlet), https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.html

Frequently Asked Questions About Sex Discrimination,

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html