Title IX Defense Blog

Practical Advice for the Defense of a Title IX or Campus Sexual Assault Proceeding

Choosing an Adviser for Campus Disciplinary Proceedings

You have the right to have an “adviser of your choice” with you in a campus disciplinary proceeding. Of course, that adviser can be a lawyer, which is what we recommend if you are able to afford one. If not, choose your adviser carefully. Your adviser can make a big difference in your case.

In general, for most schools where the adviser has to sit mute, you want someone who meets the following criteria:

  • a person you will be comfortable with,
  • a person who can talk to you intelligently about what’s happening in the hearing and how to respond,
  • a person who will take good notes about what happened in the hearing in case that becomes useful later,
  • a person who will be able to critically evaluate what’s going on in the hearing and not sugarcoat things, and
  • a person who is unfailingly on your side.

As you might imagine, these people can be hard to find. We suggest that you make a list of all people who could serve as an adviser, think through how they’d rank using the above factors, then choose among them.

In almost every case, the school will either give you a list of advisers or will tell you it can give you one if you’d like one. Many people have a knee-jerk reaction that these folks are stooges who are there only to help the school. Unfortunately, that may often be true. But if you don’t have a lawyer helping you with this process, it is probably worthwhile to at least interview a few of the school’s proposed advisers. There are good people of conscience everywhere. It may be that the people at the school who are volunteering for this duty are doing it because they believe students should have a fair process.

Here’s what to look for:

  • INDEPENDENCE

You want to make sure that the person you choose is not overly beholden to the school. Professors with tenure may not care about what the school thinks about them, while an untenured professor or low-ranking administrator keen on promotion might feel differently. You should obviously avoid anyone who reports, directly or indirectly, to anyone else in the disciplinary process.

  • CONFIDENTIALITY

When you interview potential advisers, ask whether they will keep what you say confidential. If you hire a lawyer or a counselor, you should get that. The adviser’s role is most closely related to those two roles, and you should get the same duty of confidentiality there. If the person gives you the willies on this score, think about asking whether he or she would be willing to sign a confidentiality agreement.

  • ON YOUR SIDE

You absolutely need someone who is on your side. Ask the potential advisers explicitly about that. You’re going into a foxhole with this person, so you need to make sure they have your back.

  • SMART

You don’t want to bring someone with you who isn’t able to think through the process with you. By talking to the prospects and learning a little about them, you can probably tell whether they’re smart enough to give you good advice about a complex proceeding.

  • KNOWLEDGEABLE

People who have been through this before with other students can be a real asset. Ask about their prior experience with the disciplinary process. If they’ve just had a two-hour training, that’s a reason to be less enthusiastic than if they’ve done this many times in the past.

  • KNOWN TO THOSE INVOLVED IN THE PROCESS

We all make subtle decisions about credibility based on how well we know people. If you can find an adviser who truly has your back and who has a positive relationship with the members of the hearing panel, that can be tremendously valuable. If someone sees your adviser picking her kids up every day at the same preschool and then sees her sitting next to you at the hearing, he or she may subconsciously think of you as a more credible and likable person.

A lawyer can be an obvious choice for an adviser—and federal law now allows lawyers to serve as advisers. As you might imagine, we strongly believe that people who can afford to have a lawyer represent them at their hearing should hire one. Time and again, clients and their families have told us that if we hadn’t been there, they don’t know what they would have done.

Having a lawyer as an adviser has many advantages. We tend to be good at thinking through how to present evidence and how to question witnesses. If things go truly off the rails, we can object and try to change things. For example, an accuser once tried to qualify the supposedly neutral investigator (a campus police officer) as an “expert” in whether someone is telling the truth, based on his “years of experience investigating crimes.” If we hadn’t loudly objected and demanded to call the school’s attorney to put a stop to that kind of nonsense, the evidence would have been allowed. Instead, the school’s attorney took our side and told the Title IX coordinator not to allow the testimony.

Having a parent serve as your adviser is generally not a good idea. A hearing is an incredibly stressful time for everyone—especially the student who has to defend himself. Regrettably, parents can sometimes increase stress rather than reduce it—not because they mean to, but because there is nothing more stressful to parents than watching their child suffer. There may be exceptions to this general rule, perhaps when the parent is also a lawyer who has experience as an advocate. But in general, we recommend that parents not act as a student’s formal adviser.

Of course, there are others who may fit the bill: perhaps a coach or a professor at the school who is not on the school’s list or a good friend of the family. Really, any person who meets the criteria above can be a good candidate for an adviser.

You have the right to have an “adviser of your choice” with you in a campus disciplinary proceeding. Of course, that adviser can be a lawyer, which is what we recommend if you are able to afford one. If not, choose your adviser carefully. Your adviser can make a big difference in your case. In…

What Questions Should You Expect in a Campus Disciplinary Proceeding?

QUESTIONS FOR YOU

In a disciplinary hearing, you should be prepared to answer questions about what happened. Recruit people—your parents, your friends, or anyone you trust—to ask you questions about what happened that night. Ask them to tell you how they think you reacted when you answer.

Your ability to handle questions will improve with practice. You wouldn’t play a soccer match or perform in a musical without practicing; testifying at a hearing is no different.

Have people ask you the most difficult questions they can. Try to think about the hardest part of the case. You’ll be better off if you get questions that you aren’t anticipating. It will slow you down and force you to think about what happened in different ways. You want to be challenged when you’re practicing more than when you’re in the moment.
You’ll also be better off if someone watches how you answer questions. Make sure your tone doesn’t change from when you give your statement to when you’re answering questions. It can be deadly if you go from empathetic and understanding in your statement to angry and defensive when the questions come.

QUESTIONS FOR YOUR ACCUSER

You will likely get to ask questions of your accuser. In general, there are some questions you want to make sure you ask and some you want to avoid. If the accuser willingly went to your room and can’t possibly deny that, it’s fair to ask about that. In general, if there are questions that draw out a part of the story that is helpful to you, so long as she can’t say anything damaging, then ask them.

There are two kinds of questions you don’t want to ask.

1. DON’T GIVE THE ACCUSER A CHANCE TO EXPLAIN HER SIDE.

Don’t ask questions that will get you burned. Basically, ask questions that force your accuser to stick to facts, not her explanations for facts. Don’t ask her questions about why she did things: that is never going to go your way. Despite what you may have learned from A Few Good Men, no one ever actually admits to ordering the Code Red.

2. DON’T ASK QUESTIONS ABOUT YOUR GOOD EVIDENCE.

Second, don’t ask questions that allow your accuser to explain away evidence that is good for you. If you have great text messages that help establish your innocence, don’t ask any questions about them. If you have three witnesses who said they saw her at the party that night and thought she seemed completely sober, don’t ask her why what she’s saying conflicts with what the witnesses saw. Just wait for your closing statement and argue these things to the panel.

QUESTIONS FOR YOU In a disciplinary hearing, you should be prepared to answer questions about what happened. Recruit people—your parents, your friends, or anyone you trust—to ask you questions about what happened that night. Ask them to tell you how they think you reacted when you answer. Your ability to handle questions will improve with…

How Does Intoxication Affect Consent in Sexual Assault Claims?

In a growing number of cases, we see claims that a sexual encounter was not consensual because the accuser claims to have been so intoxicated that she was unable to consent.

Frankly, these are hard cases. The line between merely being intoxicated and incapacitated—so intoxicated that you can’t consent—is not finely drawn in criminal courts, much less in campus proceedings.

To be sure, unconscious people can’t consent to sex. Nor can people who are so intoxicated that they can’t understand what they’re doing. But being so drunk that your judgment is impaired isn’t the same thing as being so drunk that you don’t know what you’re doing. People—even married couples!—have been having drunk, enjoyable sex since the beginning of time. Drunk people have also been making bad decisions—but conscious decisions nonetheless—since the beginning of time. These distinctions are often lost on college campuses, however. We’ve seen a number of cases where an accuser who’s been drinking—but is far from falling-down drunk—has initiated sexual activity, only to have the person who responded to those entreaties later be charged with sexual assault.

The standard language on intoxication in many schools’ student codes is generally not helpful. Normally, the codes just say that students who are incapacitated can’t consent. But of course they can’t: that’s the definition of incapacitation. Circular definitions tend to be about as enlightening as definitions that are circular.

As a result, these cases often turn on whether you can show that although your accuser may have been drinking, she was not so drunk that she didn’t know what she’s doing. Alcohol-impaired judgment isn’t the same thing as incapacitation.

To that end, you want to find witnesses who may have seen you both that night and can testify to how you looked. Were either of you stumbling? Slurring your words? Acting more than just a little drunk?

These cases become more difficult the more dramatic the signs of intoxication are. If your accuser vomited at any point in the night, your case may be hard to win. That’s not necessarily fair—not everyone who vomits is incapacitated, and the passage of time is important—but that distinction may be lost on a campus disciplinary panel. Similarly, if other people tried to intervene to stop your accuser from leaving the party with you or tried to keep you away from her, that can make your case very hard.

The challenge with incapacitation cases is that the line between intoxication and incapacitation is hard to draw. And schools spend almost no time trying to clarify where that line is. In one case we handled, the investigator took the following approach: she ballparked the accuser’s weight (not even bothering to ask her) and the number of drinks she’d had, used a little chart you can buy online to estimate her blood alcohol content, and then declared that level to constitute incapacitation, without explaining how she reached that conclusion. As this example suggests, intoxication cases often give schools carte blanche to discipline students in close cases. This is deeply unfair—particularly in light of how much drinking happens on college campuses—but it substantially limits the school’s liability.

Often, your temptation in a case like this may be to defend yourself in one of two ways:

  1. by saying that your accuser initiated the sexual contact, or

  2. by saying that you were really drunk too.

These make sense as a defense; if someone comes up to you and says that they want to have sex, your natural assumption may be that you are allowed to have sex with them. However, if someone is so drunk that the school is going to discount those indicators of consent, you should think carefully about how much you want to base your defense solely on what your accuser did to initiate sex.  After all, people who are actually incapacitated cannot give valid consent, no matter how enthusiastic they may seem. Focusing on objective signs that your accuser was not drunk may be more fruitful.

Similarly, it is natural to argue that you were drunk too (assuming you, in fact, were), and that it’s therefore unfair for the school to take your accuser’s side just because she filed first. This is a good argument at first glance: if a college equates drunkenness with incapacitation, then two drunk people who have sex are technically raping each other. Of course, that is absurd, but it shows how far through the looking glass we have gone.

But that argument is unlikely to get you far in a campus proceeding. Some schools, unfortunately, take the view that violating their disciplinary codes while drunk is an aggravating circumstance, not a mitigating one. Read the code at your school carefully to learn how this defense will affect you. You also don’t want to damage your own credibility by saying that you couldn’t have consented when you know in your heart that you did. Honesty tends to be the best policy, even in the upside-down world of campus misconduct cases.

That said, if you do have doubts about whether you were able to consent, you may want to think about asking the school to investigate your accuser for sexual assault. Just keep in mind that such a counter allegation may be construed as retaliation. It very much depends on the facts of your case.

In a growing number of cases, we see claims that a sexual encounter was not consensual because the accuser claims to have been so intoxicated that she was unable to consent. Frankly, these are hard cases. The line between merely being intoxicated and incapacitated—so intoxicated that you can’t consent—is not finely drawn in criminal courts,…

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