The Biden Administration And the Loss of Due Process For Male College Students Accused of Sexual Assault and Harrassment

New Administrations mean new policies, and President Biden’s policy toward college sexual assault allegations suggests a return to Obama era policies on the prosecution of male college and university students accused of sexual assault on campus.  If anything, the policy statements suggest that the relatively few rights extended by colleges and universities under the Obama Title IX guidance will be even further restricted as the focus shifts back to those who allege to have been victims of sexual assault.  While everyone stands against rape, sexual assault, sexual harassment and any other form of sexual discrimination, the reality of most alleged sexual assaults on campus are much more nuanced.  False allegations of sexual assault, unfortunately, are common.

Perhaps President Biden will remember that he was the victim of unproven allegations of sexual assault during the 2020 campaign.  According to Tara Reade, a former staff member to Joe Biden, she was sexually assaulted by Joe Biden while he was a Senator in 1993.  This assault was alleged to have happened in a hotel room, and there were no witnesses.  Despite the lack of any corroborating evidence, a majority of Americans, including many prominent Democrats believed Ms. Reade (although a majority also said it would make no difference in their vote).  The problem with the allegation is that, like most college sexual assaults, there was no evidence to establish that anything happened and no evidence to prove nothing happened.  Joe Biden survived the allegation, but many young college students do not.

One would hope that President Biden learned from his own personal experience and has developed some understanding of the plight of the wrongfully accused, but only time will tell.

A typical College Sexual Assault Scenario

It’s late on a Saturday night.  A female college freshman meets a male upperclassman at a party.  His is attractive, witty and popular.  He notices her too.  She is attractive.  They are both drinking.  No one is sure how much alcohol either of them has had, but it was probably “too much”.  At some time well after midnight, he invites her back to his room to “talk”.  She eagerly agrees to go with him.  According to witnesses, they are both laughing and having a good time together.  According to some witnesses “his hands were all over her”.  Other witnesses say that she was “hanging all over him”.

After the couple return to his room, they talk for a while.  At some point, he starts to make sexual advances toward her.  According to statistics, the vast majority of college students are sexually active.

At this point, the stories from each student diverge.  He says that they engaged in consensual sexual intercourse.  She says she was forced to have sex.  There are no witnesses or other evidence to prove either account true or false.  Further investigation reveals that she left his room around 3:00 am and returned to her dorm room. A week later, she files a report with college authorities.  The police are called.  Both of their lives are altered forever.

It is a scenario I encountered many times in the 1980s and 1990s when I was a prosecutor.  In those days, it the absence of corroborating evidence, like physical evidence of assault, I would normally decline prosecution.  Before declining to prosecute, I would ensure a full investigation was conducted to try to find corroborating evidence.  This would involve interviewing witnesses who saw the two college students together and interviewing witnesses who talked to the alleged victim and the alleged perpetrator to see if we could develop a case.  An admission of improper conduct by the allege perpetrator or a “fresh complaint” from the alleged victim could tip the scale in favor of a prosecution.

The Approach of Colleges Under Title IX

Things have changed under pressure from the #MeToo movement, and criminal prosecutions are now more likely, even in the weakest of cases.  Another trend that is more disturbing is administrative persecution of college students under Title IX.  Under Education Secretary De Vos, the rights of students accused of sexual misconduct were supposedly strengthened to include: written notice of the charges; the right to a legal adviser; and the right to present, cross- examine and challenge evidence submitted.  These “rights” would seem to be among the most basic rights expected by anyone familiar with concepts of fundamental due process would expect.  To see even these basic rights weakened should frighten anyone.

Colleges and Universities are among the most politically correct of institutions and want to see themselves as being at the forefront of the #MeToo movement.  They tend to appoint administrators and/or professors who are politically disposed to favor women over men.  We have seen cases where the thinnest of evidence has been used to expel students from the school.  Sometimes, a written statement is used even though it is inconsistent with the testimony of multiple eyewitnesses.  Sometimes, even after allegations have been investigated and found not to be credible by police and prosecutors will be used to expel a student.

In 2020, Joe Biden was lucky that his fate was decided by the American voters rather than by a panel of college administrators.

The consequences of expulsion from a university for violating the university’s sexual misconducts policy carry with them real consequences.  Expulsion is in and of itself a serious consequence.  The student loses friends and an environment where he was living and studying and the opportunity to graduate from the university of his choice. Worse, he is labeled as a sex offender making enrollment in another college or university much more difficult.  The financial consequences can be staggering and the emotional toll even greater.

What can be done?

The Department of Education has not yet changed the DeVos guidance, and, for now, at least, the current guidance remains in force.  Anyone interested in this issue should contact their elected officials and the Secretary of Education.  Due process rights are important.

There are legal avenues of relief in the courts, and those options will remain options regardless of whether policies are changed or not.  The best thing that a student suspected or accused of a sexual assault can do is retain an experienced defense counsel as soon as possible.  Since criminal prosecutions are more severe and the consequences are more serious than a college or university’s administrative actions, the first priority is always on the criminal prosecution.  The administrative consequences, however, cannot be ignored.  The right DC sex crimes defense attorney will handle both.

The student should not take any actions himself.  He should not conduct any investigation on this own.  He should not attempt to interview or influence witnesses.  He should not speak to police or investigators without counsel present.  He should not try to contact the alleged victim.  He should cooperate fully with his defense lawyer but not do anything else without thoroughly discussing the action with his attorney.

The attorney should conduct a thorough investigation in an effort to create the best defense possible.  This will involve contacting witnesses, collecting statements and developing a strategy for addressing both the criminal and administrative actions.  If you have any questions, please contact us at 202-430-1900 or by email.

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