Three steps to take if you’re accused of sexual assault

Special report

A few days after you were intimate with a fellow college student, you receive an official letter or e-mail from your university saying you’ve been accused of sexual assault. You wholeheartedly believe that you’re innocent and the encounter was consensual, but now you’re facing expulsion. What should you do next?

Andrew T. Miltenberg, a New York attorney specializing in due process for students accused of sexual assault, says there are three steps students should take immediately following an accusation in order to ensure their rights are fully protected.

Understand that the school investigator is not your friend. If you’re accused of campus sexual misconduct, such as sexual harassment or sexual assault, you’ll likely be called into a visit with a Title IX investigator after being served with a notice of charges. Don’t make the mistake of thinking this is a friendly chat with someone like your guidance counselor. This is a portentous legal conversation, and you must be fully prepared for it.

Schools are on a mission to show the public and government that they take sexual assault accusations seriously. Campus officials have faced significant pressure from the federal Department of Education under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex by any college or university that receives federal funds.

Unfortunately for the accused, this means that instead of being innocent until proven guilty, they may be automatically presumed responsible, and must clear massive hurdles to prove that a crime didn’t occur.

“Schools are being hyperaggressive,” says Miltenberg. “Being on the list of schools getting investigated by the federal government for civil rights violations or for not investigating sexual assault allegations is bad for business.”

Talk to a lawyer right away. Never talk to anyone before you speak with an attorney: You have no idea what you’ll be walking into when you sit down and meet with the Title IX investigator. Miltenberg suggests contacting a lawyer right away who specializes in due process for students accused of campus sexual assault. Not only will you learn exactly what to expect during the investigation, but your attorney will be able to start a record of the process for potential use in a future lawsuit against the school should it deviate from written procedures or constitutional due process.

Miltenberg says students definitely shouldn’t wait to hire a lawyer until after they’re suspended or expelled, because the disciplinary process can be weighted in favor of the accuser. “There are universities that I’ve litigated against that find 90% of the people charged responsible,” he says.

Given the pressure of Title IX, Miltenberg says it may not be in the school’s best interest to conduct a fair hearing. Accused students need someone by their side that they can trust from the very beginning. In most cases, students are allowed to have their attorney in the room when they speak to the investigator, which can help ascertain the best possible long-term outcome.

Learn the school’s investigation process. An accusation of wrongdoing can derail your entire college education, preventing you from achieving your personal goals and limiting your future opportunities. For this reason, you need to be diligent about learning what to expect during the investigation and speaking up when the institution strays from its own written process.

Suppose the school convenes a hearing panel made up of school administrators and students. If possible, learn the panelists’ names, and conduct some research to see if any one of them is personally biased. Has anyone been outspoken about the alleged assault on social media? Did they provide a statement to the school paper? If so, ask the school to remove the biased parties. If they refuse, their actions may aid in a future lawsuit.

If you’ve been wrongly accused of sexual harassment or sexual violence on a college campus, contact Nesenoff & Miltenberg, LLP today at 212-736-4500 or amiltenberg@nmllplaw.com for a confidential consultation. It could make the difference between expulsion and a “not responsible” verdict that allows you to continue your education and pursue the brightest future possible.