Executive Order May Limit Due Process in Student Sexual Misconduct Cases

President Biden recently signed an executive order seeking to have the rules applicable to sexual misconduct cases reviewed.  Previously, President Trump had increased the due process of rights of the accused, bringing them more in line with the constitutional rights afforded those accused of sexual assault crimes in state and federal courts.

What Happens if a Student is a Victim of Sexual Assault?

If a college student believes that they have been sexually assaulted and want to bring the perpetrator to justice, they have many choices.  They can go to the police just as with any other crime.  Alternatively, they can report it their school. Or they can do both. Or they can have both done for them. Much of this will depend on the particular school involved.

For example, if the complaining witness reports the alleged sexual assault to the school, the school officials may seek to have the police involved.  If the alleged sexual assault is reported to the campus police, they may report it to the school.  This is common and typical at Michigan State University as one example.

Also, again depending on the school involved, the person complaining of the alleged sexual assault need not participate in the school investigation. Some schools also have victim advocacy centers for complaints. Regardless of how the school learns of the alleged sexual assault, often the school will conduct its own investigation and pursue its own processes. Each school has own policy but most all now are very similar in their Title IX procedures.

What Are the Differences with School Investigations and Police Investigations of Sexual Assault Crimes?

The biggest differences relate to the applicable procedures and the applicable outcomes. As it relates to sexual assault allegations investigated by the police, the purpose of the investigation is to determine if there is enough probable cause for the alleged perpetrator to be prosecuted criminally. If the police and prosecutor, after completing their investigation, believe that a sex assault crime was probably committed, then a prosecutor will seek a warrant from the court and the alleged perpetrator would be arrested.  In this scenario the likely charge would be criminal sexual conduct.

A person accused of a sex assault crime will have all the rights and procedures typically afforded to any person accused of a crime.  For example, they would have a right to a trial by jury, a right to remain silent, a right to not have their silence used against them, a right to call witnesses in their own behalf, a right to cross examine any witnesses against them. A right to be represented by a lawyer.

Because sex assault allegations investigated by the police are criminal in nature, the burden of proof for conviction is beyond a reasonable doubt. All of these “criminal” rights, including the very high burden of proof, are all guaranteed to a person accused of any crime by both the United States Constitution as well as the Constitution of the State of Michigan.

As it relates to the investigation of sexual assault by a school, a totally different set of rules apply. When allegations of sexual assault are involved, Title IX applies.  This is a federal civil rights law and it sets forth all the applicable procedures and penalties. Title IX was passed as part of the Education Amendments of 1972.

Title IX is not just for schools.  In fact, Title IX applies to any institution receiving federal financial aid, including schools. This means that all colleges and universities that receive financial support from the federal government must investigate and address allegations of sexual assault and misconduct consistent with the policies and procedures set forth in Title IX.

What is important to know is that Title IX is not a criminal statute, and the constitutional rights applicable to criminal cases set forth above do not apply to a Title IX action.  This is because allegations pursued under Title IX are considered civil actions not criminal actions. This means the burden or proof is also much lower. With a Title IX action the burden of proof is merely preponderance of the evidence.

Because a sex assault allegation pursued under Title IX is civil in nature, incarceration and other forms of punishment also do not apply. This does not mean that being found responsible for a sexual assault by a school under Title IX is not significant.  Penalties can range from a formal letter of apology to expulsion from school, a termination of tenure or a revocation of a degree.

What Does President Biden’s Executive Order Accomplish?

The first standards applicable to investigations and enforcement of allegations of sexual assault were first promulgated in 1997. There have been many revisions to these procedures, including those that occurred during President Trump’s term. Some believed that these changes increased or enhanced the rights of the assured and included such things as the right to a live hearing, the right to cross-examine witnesses and the right to be represented by a lawyer. Some objected to these due process rights on the grounds that they made allegations of sexual assault more difficult to prove.

President Biden has now ordered that the current rules applicable to a Title IX hearing on sexual assault, including these due process rights, be reviewed. Depending on the outcome of that review, all the increased rights afforded by President Trump could be suspended, revised, or rescinded.

What to Do if Accused of a Sex Assault Crime on Campus

If you believe that you are the target of a sex assault investigation, whether it be a criminal investigation by the police, or a civil investigation by a school, you should immediately contact an experienced sex crimes lawyer. It is important that such contact not be delayed. The other thing that is very important is to not discuss the situation with anyone besides your lawyer.  And definitely don’t post about it on social media. Once you’ve retained a lawyer to assist in your defense, they will advise you on the next steps to protect your freedom and your investment in your education.