How do you prove you didn’t sexually assault someone? In a Title IX case, the question is usually whether there was consent for sexual contact AND/OR given the amount of alcohol consumed, was the complainant capable of consent. Below are the most common types of evidence in a Title IX case. This is a list of things you should look for that will help show you are telling the truth. You don’t have to find a smoking gun, concentrate on the little facts that show your version is more accurate than theirs.
1) Video – Video is probably the best evidence there is. Video shows exactly what happened at a particular date time and place. It is unbiased. Look for video taken by other students. There is also likely surveillance video of both you and the complainant from the night in question. Retrace your steps. Look for cameras. Try to determine the most likely route of the complainant. Look for cameras. Request the college’s investigator to look for video. Send an email to the investigator advising them that video must be maintained. If the video is on a private building, try to get it or ask the investigator to try to get it. Advise the business to save the video at the very least. If the investigator says the video is not relevant, they are wrong. A persons demeanor and body language before and after an alleged sexual assault is highly relevant. If there is an allegation of intoxication, the complainants motor coordination in the video before and after are highly relevant.
2) Text or Direct Messages – written communication between you and the complainant are critical. They show the context of the event. If there are statements that are not good for you (usually an apology of sorts) do not assume nobody will find them. I have seen many times where a respondent apologized not for doing something wrong, but because the other person seemed to be upset and they were trying to make them feel better. There may also be messages between the complainant and other witnesses. If you have access to witnesses ask them for the written communications. Be sure to ask the investigator to ask the complainant and any witnesses interviewed if there are written communications with the complainant. Inconsistencies are very important to look for.
3) Social Media – Do Not Violate the Active Avoidance Order if the is one. However, you can often see what the complainant and her witnesses were doing in the days before and after the alleged incident. Pay particular attention to the day of and the few days afterwards. See if you can show that their behavior is inconsistent with being sexually assaulted.
4) Witnesses – Determine who the complainant was with before and after the incident. Find out where they were before and after the incident and what they were doing. Find out their relationship with these witnesses. Find out if what the complainant told them about what happened. Different versions of the story are critically important. There is only one truth. If the story fundamentally changes, both versions can’t be true. They were untruthful then or they are untruthful now. Either way, it impacts their credibility. Even if their story is consistent, their actions may be inconsistent with being sexually assaulted. For example, it is unlikely that a person that is incapable of consent due to intoxication would be able to walk home a mile and a half. It is important to get as many direct AND indirect witnesses as possible.
5) Photos or diagrams – It is important to document the scene as accurately as possible. There are often a lot of people in the area. It can be important to show that it is unlikely that a sexual assault occurred because of the close proximity of other people. A picture is worth a thousand words. Try to get pictures of the location. Also consider aerial photos to show the route you and the complainant took to the location, if it is relevant. Photos will be important when taking testimony from witnesses as it allows for a more accurate explanation and better understanding of the testimony.
In the defense of any sexual assault case, it is important to show that the allegations don’t make sense or are inconsistent with prior versions of the complainant’s story. The types of evidence above are some types of evidence that can help. The EVIDENCE that shows your testimony to be true and the complainant’s testimony to be untrue will be the difference between a finding of responsibility and non-responsibility.