Seven Ways To Defend A Campus Sexual Assault Allegation
by King Law
I have investigated and defended sexual assault cases at more than 10 colleges. They are all different because the facts are different and the codes of conduct are different. There are however many fundamentals of a good defense. I have tried to simplify them here:
1) Before anything else, find the sexual assault policy in the student handbook. Read it. Read it again. Understand it. Demand that the investigation be conducted pursuant to the rules. If the Title IX investigation is not being conducted exactly pursuant to the policy, write to the investigator, or Title IX coordinator (email is OK) and make your complaint as specific and clear as possible. Site the specific portion of the policy you believe is being violated. Be respectful, but firm. The rules are there for both sides. The affect of not following them may not be readily apparent. Just demand they are followed. If they are not followed, you are creating a record for an appeal at the campus level or a lawsuit.
2) Prepare for the long haul – You will likely be contacted by a Title IX coordinator, or some other investigator for the college. They will suggest that they just need to talk to you to clear a few things up and someone else will decide whether there is enough evidence to go forward with a hearing. I estimate there is more than a 90% chance the case will eventually go to a hearing. I think the college’s lawyers advise the employees to make the case go to a hearing, so nobody can say they tried to bury it. The college believes that if there is a hearing, regardless of who wins, they won’t get in trouble.
3) Find out EXACTLY what they are saying you did wrong. It is not enough to say that you sexually assaulted someone. The allegation should be specific. You cannot defend yourself unless and until they say exactly what you did wrong. The law requires the date time and place of the alleged violation, as well as the section of the student code of conduct that was violated.
4) Trust no one – over and over I have seen investigators and Title IX coordinators use overly nice language, pleasant smiles and fake friendliness, while they prepare a report that will be the basis for your expulsion. They are not on your side. In fact it is not their job to be on your side.
5) Do your own investigation – Most investigators (with a few exceptions) do not have the experience to do a proper investigation. You need to do this on your own. Find witnesses. Collect phone, text and social media records. Get independent corroboration (stuff that proves you are telling the truth) for before, during and after the alleged incident. You must review every shred of evidence the investigator provides and confirm whether it matches up with what happened and the evidence you have located. DO NOT VIOLATE the NO CONTACT ORDER with the complainant, that is a seperate charge.
6) When it is time to give a statement, and you probably should, explain what happened. This isn’t about bias, or the media, or corruption. It isn’t about what usually happens, or what might have happened. You need to tell them exactly what happened and you should have EVIDENCE that supports what you are saying is true. Eye witnesses are important. If there aren’t any eye witnesses then witnesses from immediately before and immediately after are second best. Phone, text and social media messages are almost always important as they show either consistency with the claim, or inconsistency. Inconsistencies are important because the truth doesn’t change. If there are two different stories, one must not be true. DO NOT BE BULLIED by the investigator. They will try to trick you. If you didn’t do it, say so. They will often try to ask strange questions about “is it possible you misread things or are mistaken?” – tell the truth, if you didn’t do it, say so. Do not try to appease the investigator.
7) Prepare for the hearing. This is your shot – take it. Confirm with whomever is running the hearing that the law requires a presumption of innocence. Ask what instructions they will give to the board on the presumption of innocence. Know exactly what you are going to say. Have witnesses and facts that show that your version of events is true. Have questions ready for each of the witnesses the other side may call. et their witnesses to confirm the portions of your story that they will. Ask questions that show their story is inconsistent and therefore, not true.
Every day men and women are falsely accused of sexual assault on campus. I have represented both men and women. I have found the system to be broken. In my experience the allegations usually border on the ridiculous. One example of a crazy allegation, a women accused a man of sex while she was unable to consent – sounds bad. At the time of the hearing she testified that she asked him to go upstairs and have sex, she took off his clothes, she took off her clothes, she got on top of him, she took a photo of herself, she asked him to walk her home, they walked to her home over a mile and a half away, they stopped to make out with him on the college football field, then went out and got late night food – doesn’t sound like incapacity to consent to me. Two different times the allegation was sexual assault on the dance floor with allegedly 50-100 men and women watching – highly unlikely that this many people, this day in age would stand idly by.
In my opinion the root of the problem is typically the investigation. Some investigators are actually victim advocates that say they are investigators – they are biased and don’t every try to do a complete investigation. Other investigators just don’t have the training and experience to do a good job. Sexual assault investigations are hard. There are rarely direct witnesses. The smallest details from before and after the incident are critical to proving what actually happened and most college investigators don’t know how to find these details.
People that sexually assault another human should go to jail. As a former prosecutor, a member of the community, and the parent of two young children there is nothing more abhorrent than sexual assault. There is one thing that at least comes close – an innocent person being punished for a sexual assault they didn’t commit. If you are wrongfully accused, I hope the hard-earned lessons above help.
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