Why are men responding to sexual misconduct investigations in college, under Title IX, entitled to, or even deserving of, something better than a “probable cause” system?
Why are men responding to sexual misconduct investigations in college, under Title IX, entitled to, or even deserving of, something better than a “probable cause” system?
Men responding to sexual misconduct in school face a completely new crisis: The role that Title IX administrators have taken on, namely, sex police, for which they are not qualified. (1) They are also disqualified from their role because the Title IX office has to look after your complainant’s rights as much as after yours, so they have to pick a side. They always pick her side. (2). This creates danger for male respondents. In addition, at no point before did any man ever think that his school’s staff were going to treat him as a criminal suspect. But they do. Yet respondents don’t know this. The fact is that the male respondents accused of student sexual misconduct face charges in front of this sex police that are criminal. Every single state has a statute that more than likely says that the man responding committed a crime if he indeed did do what the female respondent says he did. (3). And every single Title IX investigator is going to ask the man for statements that prove that crime regardless of her duty to also protect this man. Title IX staff do not follow the centuries-old process to make sure that not a single innocent man is punished or self-incriminated.
They do in fact the opposite. They trick respondents. They threaten respondents. They humiliate respondents. (4). They do anything they can come up with to expel the respondent which, often, includes having the respondent self-incriminate. Then they apply the “preponderance” as they force the respondent into a coerced confession that they then use to deny the respondent’s need for cross-examining the complainant. (5) In this manner, Title IX staff (and a lot of activists on the other side) elide the tremendous problem of sexual assault on campus with the profound reality that crimes deserve the highest and most careful procedure, (which is the spirit of the “beyond a reasonable doubt”) not only because you may in fact be innocent (consider the extensive problem of the gray rape proposition) but also because even if you are guilty you are entitled to fairness so that you receive the correct punishment which means one that stems from a mistake free record. (6). That is the sophisticated promise of our criminal law. (7).
Title IX staff unfortunately disempower respondents handling a “she said he said” sexual crime as if it resembled academic dishonesty, like plagiarism, which is punished under the “preponderance of the evidence” standard because when a plagiarist steels someone’s idea he does not steal someone’s identity which is what the rapist does. The difference is enormous. Thus, in criminal procedures, like the process that starts with whether or not the male respondent is going to be expelled and then explodes into whether or not the male respondent will go to prison for the rape allegation that forms the basis of the original Title IX problem, the respondent cannot be disempowered. And the only way to guarantee fairness in that context demands a “beyond reasonable doubt” standard.
Yet, every school I can think of in the Philadelphia area has guaranteed that their Title IX investigators and coordinators can do a half ass job with classic mistakes like believing her first and failing to document the man’s defenses to the misconduct complaint because these schools have written down “preponderance of the evidence” as their way of doing business. That disempowers every single man. Sadly, for example, Penn (8), Drexel (9), Temple (10), Villanova (11), Haverford (12), Cabrini (13), St. Joseph’s (14), Jefferson (15), and Ursinus (16) have “preponderance” as their norm. This goes against the notion that to be guilty there should be no doubt on the record that proves hat guilt. This guarantees that the male respondent can and will be expelled. This norm similarly ignores male respondent’s rights to confront and against self-incrimination which exists as they do for any potential criminal defendant. That way of doing business is deplorable. In every other field you can think of, a life-threatening and career ending proposition like sexual misconduct does not proceed under a “preponderance” standard. No surprise then, when these men are expelled, and they run to the Court for justice, as they will not receive any of that from their school.
Thus, men responding to sexual misconduct in school, a career-ending and criminal-laden accusation, should be treated as a criminal defendant would, under the “beyond a reasonable doubt” standard.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. The “sex police” is a term that the Title IX administrators gave themselves. https://cdn.tngconsulting.com/website-media/ncherm.org/unoffloaded/2017/04/TNG-Whitepaper-Final-Electronic-Version.pdf
2. Why Title IX offices always pick the side of women has been extensively discussed in terms of the overwhelmingly female composition of Title IX staff, https://www.studentmisconduct.com/news/jauregui-law-office-2019-survey-of-diversity-in-philadelphia-area-college-and-university-title-ix-staff and in terms of what is it that men need to show to sue their schools, https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-to-why-is-it-that-men-sue-their-school-under-title-ix-more-often-than-women
3. For example, Temple University, a public Pennsylvania school, at least has the honesty of actually listing the Pennsylvania Criminal Code as part of its school’s code definition of consent: “Consent in relationship to sexual activity is defined in Pennsylvania in accordance with its plain and common meaning. With respect to sexual activity, consent means words or actions that show a knowing and voluntary agreement to engage in mutually agreed sexual activity.” https://sexualmisconduct.temple.edu/definitions/consent
4. The fact that Title IX investigators, coordinators and deans treat the male respondent like criminal trash actually becomes evidence of the school’s anti-male bias when this male respondent sues the school. Almost every Title IX law suit from a man tells a shocking story about the way the school handled the process. See, e.g, https://www.studentmisconduct.com/news/quora-answer-how-can-you-best-tell-if-a-title-ix-investigation-is-using-techniques-that-are-based-on-science-and-evidence-of-effectiveness
6. Crimes need to be proven beyond a reasonable doubt, because: “[t]he reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ” 397 U.S. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Justice Harlan’s Winship concurrence, id. at 368, proceeded on the basis that, because there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard.
7. And this is by no means an unusual posture in criminal matters, but rather an adoption of a centuries old view, including, famously the XIIth century Spanish Sephardic thinker Maimonides’ who said that: "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death." He argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely according to the judge's caprice.” https://en.wikipedia.org/wiki/Maimonides
8. “In making the responsibility determination, the Investigative team will use a “preponderance of the evidence” standard. In other words, to find a student responsible for violating the Sexual Misconduct Policy, the Investigative Team must be convinced that it is more likely than not that a violation of the Sexual Misconduct Policy has occurred.” University of Pennsylvania Sexual Misconduct Policy, Resource Offices and Complaint Procedures, effective July 1, 2019, available at: https://almanac.upenn.edu/uploads/media/OF_RECORD_Sexual_Misconduct_supplement-Web.pdf
9. “Section 7: Rights and Responsibilities Student Conduct has developed a fundamentally fair process to resolve cases of alleged violations of the Code of Conduct. Students and Student Organizations are afforded certain rights and responsibilities in this process. 35 I. Student and Student Organization Rights All Students and Student Organizations have the right: 1. To a presumed not responsible until information or statements meet the preponderance of the evidence standard.” Drexel University, Code of Conduct, 2019-2020, available at: https://drexel.edu/studentlife/community_standards/code-of-conduct/
10. “C. Student Conduct Board Hearings Student Conduct Board Hearings shall be conducted according to the following guidelines…14. The Student Conduct Board’s determination shall be made on the basis of whether it is more likely than not that the Accused Student or Student Organization violated the Student Code.” Temple University, Student Code of Conduct, available at: https://secretary.temple.edu/sites/secretary/files/policies/03.70.12.pdf
11. Subsequently and in private, the Board will promptly determine by a preponderance of the evidence with a majority vote whether the Respondent has violated the Code of Student Conduct. Villanova University Student Code of Conduct available at: https://studenthandbook.villanova.edu/procedural-options
12. “General Policies: The standard of proof employed in Dean’s Panels will be preponderance of the evidence.” Haverford College, Dean’s Panels Guidelines: Sexual Misconduct available at: https://www.haverford.edu/sexual-misconduct/internal-judicial-procedures/deans-panel-guidelines
13. “Standard of Evidence: Investigations involving allegations of acts of Gender-Based Misconduct, Relationship Misconduct, Sexual Misconduct, Sexual Harassment, Domestic Violence, Dating Violence, and Stalking will be conducted promptly and be fair, equitable, and impartial. The standard of proof in such disciplinary proceedings shall be that of the “preponderance of the evidence” or that it is more likely than not that what the Complainant alleges is true.” Cabrini University, Gender-Based and Relationship Misconduct, Sexual Misconduct, Sexual Harassment, Domestic Violence, Dating Violence and Stalking Policy, available at: https://www.cabrini.edu/about/departments/policies/sexual-misconduct-and-sexual-harassment-policy
14. “B. Evidentiary Standard It is important to note that all allegations of Sexual Misconduct in violation of this Policy are decided under a standard referred to as a preponderance of information. That means the Investigator must find, in light of all the information made available and considered, that the violation is more likely to have occurred than not.” St. Joseph’s University Philadelphia, Sexual Misconduct Policy, Available at: https://sites.sju.edu/humanresources/files/2018/09/Sexual-Misconduct.pdf#_ga=2.261578957.1948581309.1566669920-1996611820.1566669920
15. “3. Charge Decision: If the Title IX Coordinator concludes that a reasonable Sexual Misconduct Board could find, by a preponderance of the evidence, that the alleged Prohibited Conduct occurred and that a Non-Hearing Resolution option is not feasible, the Title IX Coordinator will notify the Complainant and the Respondent, in writing, that the matter has been charged and referred to a Sexual Misconduct Board.” Thomas Jefferson University, Student Sexual Misconduct Policy, available at: https://www.jefferson.edu/content/dam/tju/Academic_Affairs/files/Student%20Affairs/Jefferson-Student-Sexual-Misconduct-Policy.pdf
16. “Procedural Guidelines: The standard of proof for decision-making in student conduct matters, including in all findings of responsibility, is the “preponderance of the evidence” or “more likely than not” standard. This means that when all available information is considered, the College official or hearing body determines whether it is more likely than not that a violation occurred, based on what a reasonable person would consider.” Ursinus College, Student Code of Conduct, available at: https://www.ursinus.edu/student-life/handbook/student-code-of-conduct/reporting-student-misconduct/index.php