I received a letter from my university that says I have been accused of sexual assault. What are my rights?
Your rights in your university’s administrative process may not be the same as your rights in the criminal justice system.
- You have the right to remain silent. However, the university can use your silence against you in an administrative hearing. Also, anything you say to university personnel can be used against you in an administrative process hearing, and university officials can share what you say with the police or prosecutors.
- You have a right to hire an attorney. However, you may or may not have the right to have him or her present during any proceedings.
- You have due process rights. This means that you have the right to receive notice of the accusations against you and the basis for the accusations. You also have the right to obtain the evidence that the university has against you and the right to a fair hearing in front of an impartial person or panel who can judge you impartially, according to objective procedures, and without prejudice.
Should I hire an attorney?
Yes. If you can afford an attorney, hiring one is advisable.
How do I know what kind of attorney I should hire?
Look for attorneys that specialize in this type of law. If you already hired a criminal lawyer, your lawyer may not be qualified to also guide you through the administrative process with your university. If you hire one attorney for the criminal case against you, and one attorney for the university process, you should have the lawyers coordinate with one another.
What do I do if criminal charges have also been filed against me?
Hire a criminal attorney. Try to get the university investigation pushed until after the criminal proceedings are done. You can do this by requesting for a delay in the university’s investigation and/or a delay in having the hearing. However, it is important to know that the federal government has mandated universities to act swiftly under Title IX (for more information about Title IX, click here), so a request for delay may not be successful.
What is the process for determining responsibility for a sexual misconduct on a college campus?
At most universities, there is an investigations stage, a finding stage, and an appeal stage. Depending on the procedures at your university, you may have an opportunity to have a hearing in front of a panel at both the findings stage, and the appeal stage. However, that is not the case all institutions. This page provides a general outline of the process; however, because it tends to vary by institution you should make sure to familiarize yourself with the rules and procedures applicable to your university.
What is the informal resolution process?
Informal resolution means that no formal investigation occurs and disciplinary action is not required as a result of the incident. Many schools allow complainants to informally resolve certain sexual harassment claims instead of or before filing a formal complaint. If the complainant wishes to pursue the issue further, the formal campus procedure may be available. However, that is not the case at all institutions.
The informal process is not permitted for sexual violence cases, and it may only be available if the incident involves two students of the institution.
What are the potential options of the informal resolution process?
Options may include:
- A consultation where the victim communicates directly with the alleged perpetrator;
- Working with the appropriate department/unit to modify the situation in which the offending conduct occurred;
- Arranging and attending a meeting between the alleged perpetrator and the appropriate administrator to discuss the requirements of the institution’s policy on sexual misconduct; and/or
What is the formal resolution process?
When the conduct is severe, such as sexual assault, the institution will initiate a formal process to resolve the complaint. The formal process involves the submission of a written complaint, a formal investigation into the facts alleged in the complaint, and the possibility of disciplinary action against the alleged perpetrator.
Will the institution limit my activities during its investigation?
The institution may implement interim measures if appropriate to ensure the complainant’s safety and to limit potential retaliation. Such measures may include:
- Campus no-contact orders
- Escort or transportation assistance
- Housing or employment assignments
- Class schedule modification
- Restrictions from specific activities or facilities
Your failure to adhere to the interim measures may constitute a separate violation of the institution’s sexual misconduct policy.
How long does the formal resolution process last?
While each institution’s average resolution timeframe may differ, the institution will make all reasonable efforts to investigate and resolve each complaint. Many institutions attempt to resolve the complaint (not including possible appellate options, which are discussed below) within sixty (60) days of the complaint.
Will I be involved in the investigation?
Once the institution receives a complaint, it will provide notice of the allegations to you in writing with a copy of the institution’s sexual misconduct policy and procedures. The institution will also provide the complainant with a notice of allegations to the respondent. You will likely be asked to provide a response within a certain period of time.
Because of federal privacy laws, including FERPA, many institutions do not allow either party to have a copy of the investigation file. However, they will generally allow a student and the student’s representative to review the file and take handwritten notes.
How does the investigative process work?
Many institutions have an investigation and findings stage. This may begin before or after a response is received from you. The investigator is neutral and will provide both the complainant and the accused an opportunity to respond in person or in writing, submit documents, and present witnesses. The investigation is usually conducted by the University’s Title IX Coordinator and their staff. The investigator will conduct interviews of the accused, the complainant, and other witnesses. The investigator will also review the evidence.
What do I need to do during the university’s investigation stage?
The university’s investigator will interview you as part of the investigation. Before you sit down for the interview you should talk to your attorney, gather all relevant evidence, and talk to all potential witnesses. You should also have your attorney present during the interview with the investigator. If you have a separate criminal attorney, confer with him/her before the interview.
During the interview, point to specific evidence or documentation that supports your contentions, provide names and contact information of people and witnesses you want the investigator to talk to, and answer as many of the investigator’s questions as possible. However, you do have the right to invoke your right against self-incrimination under the Fifth Amendment of the United Stated Constitution. Before you do so, discuss it with your attorney. It is important to note that your silence could be used against you by the university and the university could use your silence against you in the hearing.
What happens after the investigator completes the investigation?
Once the investigation is complete, the investigator may issue a report. The report may include summaries of interviews, photographs, descriptions of relevant evidence, and a detailed description of the incident and related events.
What happens after I speak with the investigator?
Many universities conduct an “information session” with the accused. The purpose of this session is to meet with either the Title IX Director or another university staff member to review the charges pending and sanctions that will be sought at the formal hearing. This session will also serve as your opportunity to ask any questions you have regarding the discpinary process.
Will there be a hearing where I get to present my side of the story?
Yes. There will generally be a hearing in front of a panel. This hearing goes by various names such as “a due process hearing,” “formal hearing,” or “conduct conference panel.” The purpose of the hearing is to allow you, the accussed, to present your perspective of the events which led to the charges alleged against you and to determine what sanction, if any, will be taken in reference to the charges made against you. You will have the opportunity to provide documentation and/or witnesses who have first-hand knowledge of the incident(s) resulting in charges.
Who will conduct the due process hearing?
The institution’s policy will govern the makeup of the hearing body or board. The hearing could be before a panel of several campus officials. Additionally, many universities have students on their panel.
What is the burden of proof at the due process hearing?
The panel/hearing officer will generally make its decision based on a preponderance of the evidence. This standard is much lower than the standard in a criminal trial, which requires guilt to be determined beyond a reasonable doubt. A finding of violation based on this standard means it is more likely than not that you violated the institution’s sexual misconduct policy. Another way to think about this standard is to ask yourself the question: Is it more than 50% likely that I violated a university policy or rule?
Can I find out what testimony and information will be presented during the hearing?
Prior to the hearing, the Title IX Coordinator will generally advise both the complainant and the accused of the names of any witnesses and a brief summary of their expected testimony and the name of any advisor that will attend the hearing and whether that person is an attorney. Whether either party will receive an advisor will vary by institution.
What is the role of an advisor at the due process hearing?
The role of the advisor will vary by institution. Some institutions may only allow an advisor to sit with the advisee and communicate quietly with the advisee orally or in writing. The advisor may or may not have the ability to speak on an advisee’s behalf and may or may not have the ability to make an opening or closing statement or present evidence or question witnesses. Some institutions only allow the advisor to be an attorney if there are also pending criminal charges.
Can I attend the due process hearing and provide evidence?
The complainant and the accused will each receive notice of the hearing and has the right to attend. Most universities expect the accused’s presence at the hearing; however, neither the complainant or the accused will be compelled to attend. The complainant and the accused may be allowed to present evidence. If you wish to do so, submit your evidence in a timely fashion to make sure your institution will allow it to be considered during the hearing. Generally, the university will require you to submit any documentation or evidence that you wish to present to the hearing panel at least one full business day prior to the start of the hearing.
The person wishing to present a witness will generally be responsible for securing that witness. If a witness who is helpful is not available, an affidavit can usually be admitted. Sometimes character witnesses—which can be helpful in terms of helping reduce punishment if you are found guilty—are only allowed to provide a statement via affidavit. Generally, the university will require you to submit a list of witnesses in writing at least one full business day prior to the start of the hearing.
Do evidentiary rules apply during the due process hearing?
Generally, formal evidentiary rules, like those in a criminal trial, do not apply. This means that hearsay and unauthenticated documents are allowed at the hearing. Keep in mind, however, that relaxed evidentiary rules make it easier for both sides to present their case, and evidence that may not be available in a criminal trial could be used against you at the university’s hearing.
What happens at the due process hearing?
The hearing will generally commence with a brief introduction from the hearing chairperson to introduce the individuals and explain the hearing process. The hearing is generally an internal institution process rather than a formal court proceeding. Thus, the rules of evidence and formal courtroom procedures will typically not apply.
The university and the accused may have the opportunity to present opening statements. The university and the accused will have the ability to present his or her evidence to the panel, which may consist of documents and testimony from witnesses. Many institutions do not allow the other party to cross-examine witnesses directly. Instead, they may allow the other party to present written questions to the panel prior to the hearing or at the hearing. There is no guarantee that the questions will be asked by the panel. The panel will generally decide whether the question is relevant and may rephrase the question or decline to ask the question entirely.
Once the panel has heard all of the evidence, they will make a decision. The decision will consist of a finding of “not responsible” or “responsible” for each charge. If the accused is found responsible, then the panel will decide what sanctions to impose. The panel will provide a decision within a certain time period and will generally provide a written decision to the complainant and respondent.
For some institutions, this is the end of the formal process. The hearing decision becomes final. For others, either party may appeal the panel decision. The sanctions imposed will generally remain in place while the party appeals the hearing decision.
What are some of the possible sanctions?
Possible sanctions include, but are not limited to:
- Termination of employment
- No-contact orders
- Expulsion or suspension
- Probation (disciplinary and academic)
- Mandated counseling
- Revocation of admission or degree
- Monetary restitution
- Mandatory withdrawing from a course with a grade of W, F, or WF
- Banning from campus organizations
How and when will I be notified of the decision and sanction (if any)?
The findings are generally provided to the complainant and the accused simultaneously. The findings will be provided in writing, and the institution will notify both parties of any rights of appeal under the university’s policy.
What can I do if I disagree with the finding or the imposed sanction?
Generally, both the complainant and the accused have the right to appeal the decision or finding. Although each institution has slightly different procedures, the respondent may contest the finding and/or sanction imposed. The deadline to appeal may come quickly (sometimes in as little as five days), so be sure and identify the relevant deadline.
What happens if the decision comes back in my favor and I am found not responsible/no violation?