Advice from a Parent
What follows are the thoughts and reflections of one mother whose son faced a wrongful accusation of sexual assault on a college campus. Her experience is just one example of how a broken system has ruined the lives of hundreds of young students.
“Expect that your son may well be suspended or expelled.
It’s crazy, I know…and it is too horrible to even contemplate. But your son may well be suspended, perhaps expelled. It doesn’t matter that he is innocent, and it doesn’t matter how much proof you have that he is innocent. Unfortunately, from the perspective of too many of our nation’s colleges and universities, the choice between truth and justice on the one hand versus the loss of federal funding or risk of damage to their reputation on the other, is too significant. Self-interest and federal funding all too often wins.”
“Get a good lawyer - right away.”
“You will need a lawyer who has specific experience with sexual assault accusations. These types of cases are difficult to navigate. Your lawyer may not be allowed in any proceedings or in any conversations with administrators, but you still need one to guide your actions. Everything your son says or does may be used against him in the future. He should immediately stop talking about any details or facts of the situation to anyone except his attorney and perhaps one family member, who should also not talk about the case to anyone. Discussing anything related to the case is serious business; words and actions can be twisted and misinterpreted. Shut down Facebook, Snapchat, Instagram, Twitter or any other social media. Everything on those sites may truly be innocent fun but can be used against your son.
This is particularly important if there are or may be criminal charges pending against your child, or if there has been any law enforcement involvement. Make sure that your child understands that anything said to university administrators or campus police can be subpoenaed for use in any resulting civil/criminal court hearings. In essence, anything your child says can be used later regardless of how comfortable he is made to feel about talking openly with university officials. “
“Familiarize yourself immediately with (1) the student disciplinary code for the school so that you know what process they have in place for handling these matters (but don't necessarily trust that the school administration will abide by its own stated policy); and (2) the "Dear Colleague" letter sent in April, 2011, from the Office for Civil Rights of the US Department of Education to campus Title IX offices which will inform as to how the federal government has instructed colleges to proceed in these cases.”
You and your son must document everything; every text, phone call, all communication. Insist that all correspondence from the university be delivered in writing. Do not allow him to meet with any university official alone. Ask to tape every verbal conversation. Do not back down. Do not allow your son to have any unprovable conversations with any administrator or university employee. Save every scrap of communication regarding the case. Document every conversation about the case, including those with your attorney. Create a file system. Research on your own. Find resources and information about other cases. Look for organizations to help you.
"Expect that your son will have few rights."
“The rights we expect as American citizens aren’t given to those accused of sexual misconduct on our nation’s college and university campuses. You will be told he has rights, you will most likely be told there will be an investigation by employees who have been properly trained, that there will be no bias, that your son will have a right to have witnesses and to state the facts of the case, and that he has a right to a hearing. It is possible some of this will not happen. Yes, there will probably be a proceeding that, according to the university, fits the criteria of an "investigation and hearing," but for too many falsely accused students, this has turned out to be a “kangaroo court.” If that happens, you will feel outraged. It will be hard to understand how this is allowed to go on in the United States. I am sorry to tell you this, but on too many campuses, your son’s fate was sealed the day the false accusation hit the student affairs office. The school will be compelled to find your son “responsible” and to expel him. Full due process does not exist in these cases. Until the law changes or until the "Dear Colleague" letter is rewritten, your son has few rights.”
"Expect university officials to sound fair-minded, sympathetic and caring."
“University officials are often well versed in how to talk around issues while giving no real answers. The reality of the situation is that, due to the demands imposed by the Office for Civil Rights and the Department of Education, they may feel pressured to find your son “responsible”. Administrators will talk about fairness, about gender equality, about caring for all involved, but in reality they more than likely just want the situation to go away. Federal funding and reputation are involved and to the university, the importance of these is more significant than truth, fairness, justice -- or your child.”
"Expect you may need to file a lawsuit against the college or university."
“It’s very unfortunate, but this may be what you will have to do to clear your son’s name. Your options may come down to either suing the university or allowing your son to be branded as a sexual predator for the rest of his life. He is potentially facing a future without a college education which will significantly alter his career plans. If his name has been revealed publicly, he will face difficulty finding employment. The landscape of his future can look very bleak. It is possible some people will accuse you of suing the university for money, or suggest disparagingly, that your attorney is money-grubbing. What they don’t understand is that you have no choice. The system is broken and your son is its victim. The only way to secure his future is to clear his name.”
"Expect that some people will not understand."
“To outsiders who have never faced this or haven’t experienced university proceedings, what you tell them is occurring seems impossible. Many people do not understand how something like this could happen in the United States. They may not even believe you or in your son’s innocence. They won’t understand how basic rights are being ignored, how facts are being ignored, how the system can be distorted in this way. It will seem so surreal and far-fetched that it doesn’t seem possible. But it is. It happens on nearly all of our campuses - large or small, public or private, north, south, east and west. False accusations are ruining the lives of many young men. The current hearing system on college campuses does not bring justice to any members of the campus community.”
Expect to become knowledgeable about all kinds of legal terminology.
“Legal terms such as "Effective Consent" and "Preponderance of the Evidence" will be explained to you by your attorney. It is important that you and your son understand the meaning of these terms in the law and how they may and will impact upon your son. Ask as many questions as is necessary to become clear about this.”
“Consent may seem simple enough. A girl either says "yes" or "no" to sexual involvement. But it seems that this isn't necessarily the case. For example, if a young woman has been drinking at all, it may be presumed that she could not have given "effective consent" to any sexual activity. Even if she initiated the encounter, even if she supplied condoms, even if she was a joyful and willing participant, even if the relationship was long-standing, what may seem to have been consensual conduct may be deemed to have been 'ineffective'. Even months or years from now she can change her mind about how she remembers the situation and whether she had consented.”
"Preponderance of Evidence" means that if, in the eyes of university tribunal members, there is a 50.001% chance that sexual misconduct took place, your son will be found guilty. As your attorney will explain, this is the "standard of proof" that the federal government has dictated is to apply in campus tribunals. Frighteningly, it is a very low standard unlike, for example, the concept of "beyond a reasonable doubt" which is employed in all criminal trials. It is a standard that is ripe for injustice, especially in a circumstance where the university is investigating the allegations and sitting in judgment about them, and where the school has an interest in the outcome in terms of federal funding and reputation. With only a .001% differential between a finding of guilt or innocence, it does not take very much weight on one side of the scale of justice to tip the balance. Unfortunately, in the current climate, it is all too often the underlying albeit unspoken presumption that because your son is a male, he is guilty: an assumption that all boys will take advantage of a girl if given the chance. Even if sexual contact did not occur, if there was an opportunity for any sexual contact, he may be found guilty.”
“In fact, current procedures deem that it is always the boy’s responsibility to ensure that the girl had not been drinking. Even if the girl is the initiator, the aggressor, or “comes on to” your son, it is his job to gain “effective consent” (which by definition cannot be given if the girl had any alcohol whatsoever). One more thing to add to this nightmare is there is no statute of limitations which, as your attorney will explain, means that a young woman can come back years later and accuse your son of sexual misconduct.”
"Expect an adversarial and unsympathetic campus environment."
“As soon as the false allegation is made, your son’s campus life will be fundamentally different. The student paper may report the allegation. The accusation against him may be posted on the university website. His name may or may not be used, but students still may learn his identity. He will feel branded, he will feel judged. He will be living life under great scrutiny. He may be verbally attacked by name-calling and/or may endure physical confrontations. He may be kicked off of his sports team or booted out of his fraternity. This will add an immense amount of stress and anxiety to your son’s life, and he will feel as if he is drowning…and you will feel helpless as you bear witness as all of this unfolds.”
“In retrospect, I wish we moved our son back home as soon as possible. The damage done by leaving him on that campus for months while the “investigation” and “proceedings” were occurring left him with deep emotional scars. Because he was innocent, and because we were afraid that bringing him home might look like an admission of guilt, he stayed. But that environment was toxic and very damaging. If we have known he would be found “responsible” despite much solid evidence of his innocence, we would have brought him home and spared him from further damage.”
"Expect a lack of understanding and support from your son’s university."
“Your son may be expected to go on with normal academic life. The accuser will typically be allowed to make up school work not completed due to the stress in her life. She will be offered extra help, given assignment extensions and be allowed to retake courses . Your son may not receive any of these accommodations. He will be expected to attend class, write papers, and take exams without any additional support. The accuser will also be offered a panoply of support from the school, including comprehensive medical services, support assistance and psychological counseling; none of this is required to be provided for your son. Although he is faced with being branded a sexual predator and losing everything he has worked toward his entire life, it is expected that he should be able to function as if none of this is happening.”
"Expect a long road to healing."
“Your son will need a lot of support. You will need a lot of support. My suggestion is to hire a good therapist outside of the university as soon as your son is accused. Your son may face loneliness, depression, anxiety, and post-traumatic stress. The toll on your son’s health - physical and mental - can be extensive. You or he may experience sleeplessness, nightmares, anxiety, panic attacks.”