How accusations of sexual assault are handled on campus

Mar. 28, 2018 By NMGL

Special report

Since the federal government warned colleges and universities in 2011 to react decisively to accusations of sexual assault on campus, most schools follow disciplinary procedures that give accused students fewer rights than they would have in state or federal court.

Because schools worry about being investigated under Title IX of the Education Amendments of 1972, the law that was originally created to encourage gender equality in college sports, school officials usually stick with their standard disciplinary process – a practice that may not provide the accused with as many protections or opportunities to present evidence.

Andrew T. Miltenberg, a veteran trial lawyer specializing in due process for students accused of campus sexual assault, says colleges and universities continue to focus on Title IX, even though Education Secretary Betsy DeVos has since reversed much of the policy laid out in the government’s 2011 letter.

Title IX, which prohibits discrimination on the basis of sex in any school that receives federal funding, does not require institutions to have different disciplinary procedures for sexual harassment and sexual violence accusations. These procedures typically vary significantly from court proceedings, Miltenberg says.

In most instances, schools’ grievance procedures use a single investigator model. Under this system, a lone Title IX investigator will conduct a full investigation by interviewing witnesses and collecting documents, such as police reports and social media communications. Since there’s no specific procedure for conducting investigations under Title IX, what evidence is and isn’t considered is left up to the investigator to decide.

During the investigation, the accused will receive notice of the process. After the investigation has been conducted, the investigator will draft a report. Depending on the college or university, this report can serve one of two purposes. In some institutional disciplinary proceedings, it forms the basis for determining whether or not a hearing is required. In other cases, the report may represent the final decision.

If a hearing is held, the complainant and the accused will each have an opportunity to speak to a hearing officer or a panel of university officials and faculty members. Unlike court proceedings, where accused students have a lawyer who asks questions and probes the evidence on their behalf, students in disciplinary hearings may only be accompanied by a lawyer as an adviser. He or she usually is not permitted to speak.

At the conclusion of the hearing, the hearing officer or panel will render a decision that supports or rejects the charges. They come to that decision by a significantly different route than a court of law.

Court proceedings require judges and juries to be persuaded by clear and convincing evidence that demonstrates guilt beyond a reasonable doubt. Moreover, the rules of court require people who present evidence to tell the truth or face perjury charges, and guarantee accused students or their attorneys the right to cross-examine witnesses.

In a disciplinary procedure, however, the hearing officer or panel only needs to be persuaded that an accusation is more likely to be true than it is to be false. This approach, known as the “preponderance of the evidence” standard, means that a panel can rule against an accused student even if there are substantial doubts or questions about the evidence.

“In Title IX processes at universities and colleges, the preponderance-of-the-evidence standard essentially means that immediately upon the allegations being made – all things being equal – the accused will be held responsible,” Miltenberg says.

During the hearing, statements may not be required to be submitted under oath, and cross-examination likely will not be allowed, making it harder for those accused to defend themselves. Moreover, these proceedings typically move at a much faster pace than criminal charges, so those accused must think and act quickly to avoid life-changing penalties.

Obtaining expert legal advice is absolutely necessary for any student who learns that he or she is the subject of disciplinary allegations involving campus sexual behavior, Miltenberg says. An experienced trial lawyer like Miltenberg will thoroughly review the school’s policies and every fact and small detail of the case. By clarifying events before, during, and after the alleged incident, the lawyer will help an accused student prepare for the disciplinary hearing and know what to expect.

While a lawyer can’t talk during a disciplinary hearing, they’re usually allowed to quietly pass notes or break to speak with their client. And if the accused is found guilty of sexual misconduct under preponderance of the evidence, the lawyer will work with the client to file an appeal in an effective way.

If you or someone you know has been accused of sexual misconduct on campus, swift action is needed to ensure that due process is respected. Miltenberg says that failing to act quickly and decisively can result in students being thrown out of school, sometimes losing all the academic credits earned from years of hard work. A call to Andrew Miltenberg at the first signs of trouble may make the difference.

For a confidential consultation or to learn more about Title IX offenses, contact Nesenoff & Miltenberg, LLP today at 212-736-4500 or