The world of defending a criminal case used to be simpler. As I look around my office at lawyers who have practiced in excess of 50 years, I realize how much the landscape has changed in just a generation or two. Nowhere is this more apparent than in the increasing number of civil proceedings that accompany even a misdemeanor criminal case today. What is relatively new as well is the new landscape on college campuses of Title IX requirements in cases where sexual misconduct is alleged.
I recently lunched with a parent of a college student. She told me a story about how her son, a college freshman, had engaged in a consensual sexual encounter with a young lady. Both parties were students at the same university. It is reported that the Feds have implemented new policies under the Obama administration that seek to curtail the number of sexual assaults on college campuses. The simple version is that many, if not most, college campuses receiving Title IX funding have requirements regarding sexual conduct for students, which can include getting verbal consent and permission for each and every sexual act as a situation progresses (i.e., kissing, touching, etc.). What has accompanied the new policies is an increase in staffing at most universities, usually in the form of additional assistant deans of students and staff to investigate claims of sexual misconduct by a student.
Students who are accused are often asked to come in and give a statement to a hearings officer within hours of the initial allegation. Many are blindsided by the quick process and have no idea what the impact might be on their future. A finding of sexual misconduct will stay on the student’s academic record forever. Statements in the academic setting are also useful to law enforcement in the event of a criminal investigation. Yes, a student can appeal the findings and sanctions. What is the nature of this appeal? Typically, the student is allowed to present evidence but is not allowed to have any meaningful legal assistance at the disciplinary appeal hearing. A lawyer can attend with the student but essentially must sit like a potted plant—with the exception that the lawyer and student may pass notes to one another.
It is difficult to believe that this is a process adopted by thinking individuals who ostensibly should be modeling fairness and due process. There are civil lawsuits being filed to attempt to change this imbalanced process, and there are high-profile horror stories. The attempt to curtail sexual misconduct on campuses is a noble goal and should be pursued. However, given the short track record of recent cases on campuses involving the new initiative, you have to wonder if basic principles of fairness have taken a back seat to a well-intentioned political agenda.
We’ve seen this play before in the context of other types of cases. Civil judges often have hearings early in a process following an arrest over whether to grant a protective order in a family violence case. The criminal defense attorney should never ignore this and the pitfalls as well as the opportunities it presents. In child abuse cases, there is often concurrent family law litigation moving much more quickly than the criminal case, and it can have huge consequences on the outcome of the case. I have three criminal cases right now in which the alleged victim has filed a concurrent civil suit for monetary damages. As discussed above, statements made by students at their “initial meeting” with a dean of students representative can greatly impact the outcome of a future sexual assault case in district court.
It is not my role to advise anyone about policy matters on how we handle the serious issues of sexual assault, family violence, or child abuse. However, it is at the heart of all TCDLA members, judges, and prosecutors to consider how an individual accused is treated when well-intentioned policies are implemented that lack fundamental fairness. If you have such a case, get involved early and fight for your client. The fight can be long, difficult and take more time than you ever expected. However, it is your duty to engage rather than turning a blind eye to concurrent civil and administrative proceedings that can shape the outcome and your client’s future.