Advice from FACE Attorneys
What to Do if You’ve Been Wrongfully Accused of Sexual Misconduct
What follows is a compilation of thoughts and reflections from attorneys who have represented numerous FACE students who faced wrongful accusations of sexual misconduct or harassment on their college campuses.
The purpose of this Advice from Attorneys is to help you and your student prepare for a process that may contradict everything you believe about how a fair, transparent, and unbiased adjudication should be conducted in America.
Above all, please know that you are not alone; there are over one thousand families whose students have been in your exact position. Reach out to them through FACE’s website contact form here.
Finally, be sure you read Advice from Students and Advice from Parents.
When You Are Accused of Sexual Misconduct
If you are a student who has been accused of sexually assaulting another student, please get help quickly. Too often, students who are accused of serious misconduct in a student disciplinary proceeding keep silent, assuming that if they just tell their version of what happened, everything will work out fine.
This is a mistake.
We have represented students in school disciplinary proceedings who have been accused of sexual assault. It is impressive how many resources a university can bring to investigate and discipline its own students.
The School’s Interest
The school's interest is not in being fair. The school is not trying to ensure that the truth comes out. Rather, the school is trying to ensure that it protects itself.
The United States Department of Education has told schools that it takes allegations of sexual harassment or sexual assault very seriously. The Department of Education can cut all federal funding to a school – money for federal student loans and money for faculty research – if the school handles a rape complaint in a way that the Department of Education doesn't like.
If a student complains about rape on campus and the school doesn't handle the situation aggressively, the school can be sued, and the Department of Education can start a lengthy and expensive investigation of the school.
Your Future
If the school decides that you sexually assaulted another student, that decision can follow you for the rest of your life.
A school can expel you or suspend you if you are found guilty of sexual assault on campus. They can ruin your future without ever calling the police.
Perhaps worse, the school can put a mark on your transcript. If it does, every school you apply to in the future will see that you were found guilty of sexual assault. Even if the school doesn’t mark your transcript, there are other ways your disciplinary record will be discoverable. Transfer applications and post-undergraduate school applications require you to self-report instances of disciplinary violations and will require consent to confirm such records with your previous school. Very few schools will accept a student with this type of mark on the student’s transcript or in the student’s disciplinary history. If you want to transfer to another college or go to law school or graduate school, you will have a much harder time.
It's your word against the complainant’s, and they only have to believe the complainant a little bit more.
You can be found guilty if they just think the complainant’s version is more likely than yours.
A College or University Disciplinary Proceeding
In a university disciplinary proceeding, you don't have the same rights as in a courtroom:
· You aren't presumed innocent.
· You don't get to ask questions of the person who is accusing you.
· It's your word against the other students, and they only have to believe her a little bit more.
· They may not have to tell you what evidence they have against you.
· You can be found guilty if they just think her version is more likely than yours.
· You may not have the right to appeal.
· Your judges may be biased against you.
Investigation Is Crucial
In many cases of campus sexual assault, a diligent investigation by the student who has been accused needs to happen as quickly as possible. Promptly starting an investigation can be the best way to bring out the truth and to clear your name.
Immediately, every email, text message, or other communication that is relevant to the accusation against you needs to be found and saved. A trained investigator needs to talk to each person who could be a witness to what happened – and what happened before what happened. The truth is only on your side if you preserve it and find it quickly.
Consult Experts, Guides, and Other Authorities
Read the KaiserDillon Guide to Representing Yourself in a Campus Sexual Assault Case [1] and FIRE's Guide to Due Process and Campus Justice, [2] 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.
Title IX Law Is Unique and Complex
University disciplinary hearings are complex legal proceedings. The rules vary by each school and are set out in your student handbook. Many courts have held that this student handbook is a contract between you and the school – the school has to follow its own rules when it tries to discipline you.
The Department of Education makes rules that schools have to follow when someone on campus says that they have been sexually assaulted or raped. Campus rape allegations can trigger a strong reaction from the Department of Education.
By diligently investigating the facts and navigating the University procedures, you can take dramatic steps to protect your future and your good name.
Last Updated on March 19, 2019
FOOTNOTES
[1] KaiserDillon Guide to Representing Yourself in a Campus Sexual Assault Case, https://kaiserdillon.leadpages.co/campusdefense/
[2] 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
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