A decade ago, many believed that sexual assault allegations were too often given scant attention by colleges and that accusers were routinely discouraged from reporting attacks. The Obama administration tried to correct that approach, but many believed it overcompensated in favor of accusers with rules that did not protect the due process rights of those who were accused of misconduct.
Education Secretary Betsy DeVos recently announced rules that many believe will strike a new balance that respects the rights of both accusers and the accused. Lexology says the final regulations “materially change how cases of sexual misconduct must be handled at colleges and universities” that receive federal funding.
The new regulations stipulate that affected colleges and universities must only investigate cases in which a formal complaint has been filed by someone who is attending the school or taking part in an activity of the school.
Also included in the regulations are grievance procedures that feature live hearings in which both the accuser and accused, as well as witnesses, can be questioned by “the party’s advisor of choice (not the party personally).”
Legal experts believe this is a game-changer. It means that the accused can be represented by an experienced criminal defense attorney who can cross-examine any witnesses and the accuser.
Also, if either the accuser or accused requests it, the college or university must set up a virtual, live hearing with the parties in separate rooms, with both able to see and hear the other answering questions.
The rape-shield process is in place, meaning that questions and evidence about the accuser’s sexual behavior and predisposition aren’t relevant – unless evidence about past sexual behavior is offered to show that someone other than the accused committed the alleged act. The other exception is if sexual behavior evidence is offered to show that the alleged act was consensual.
There is to be a presumption of innocence throughout the process.
Schools can use either the “clear and convincing evidence” standard or the “preponderance of the evidence” standard.
Both the accuser and accused can appeal, provided one of three conditions exist: procedural irregularity that affected the outcome; new evidence is available; and the investigators or decision-makers or Title IX coordinator was biased against either party or had a conflict of interest.
Universities and colleges that receive federal funding have to put the new regulations in place by mid-August. Those schools include a number in Chicago and its suburbs.
If you are under investigation or have been charged with sexual assault or if you face university discipline involving sexual assault allegations, contact the Chicago Law Offices of Darryl A. Goldberg at (773) 793-3196 for representation or to schedule a safe consultation.