What is Title IX?
Title IX is a disciplinary process brought against students, faculty, and staff at both colleges and universities, as well as K through 12 schools. A Title IX violation must involve some form of gender discrimination, sexual harassment, sexual assault, dating violence, or stalking.
In a Title IX proceeding a student can face expulsion, suspension, probation, or any other level of discipline the school has. If the persona is an employee, they could face any form of discipline up to and including, termination of their employment. Title IX is regulated by the Federal government and there are specific regulations that must be followed.
WHAT ARE THE 5 WOST MISTAKES YOU CAN MAKE IF ACCUSED OF VIOLATING TITLE IX?
#5 Worst Mistake:
Talking about your case on any type of social media. Even applications like Snapchat. In a typical situation, you get a notice from the school, or you get told by someone that you’re going to get charged with a Title IX violation. You start freaking out. Like many other high school or college kids, even some faculty and staff, you start venting about it on social media. In today’s culture it’s become natural to vent and talk about all aspects of our lives on social media. People talk about their day. They talk about what they ate, and just about everything else they can think of.
But talking about your Title IX Case is an enormous mistake. Because anything you say on Facebook, Instagram, Snapchat, etc. can be used against you in the future. Even with Snapchat. People often think that those videos and texts and stories can’t be saved, and they get tossed out after a short period of time. But people can screenshot those. They can take another device and take a picture of it, so you don’t even know. Stuff you said on any social media could be used against you. Particularly if you admit in the post to doing any part of the facts that led to the Title IX charges. Even if you only admit to having some kind of relations with the other person, which you say were consensual, that’s a huge mistake.
#4 Worst Mistake
Confronting your accuser or any witnesses to the Title IX case. That’s an enormous mistake. It causes all kinds of problems. Many people get notice of the Title IX charges and get mad because they’re like, “I didn’t do anything.” The first thing they do is pick up the phone and send a text or an email or sometimes call the person accusing them. They start laying into them and start yelling at them. In some way, shape or form, confronting them about making the accusation. Or they go to a witness who’s been named and do the same thing. This is a huge mistake for a number of reasons.
First, depending on what you say, it could be used as some kind of admission against you in the Title IX case. Second, by doing this, you are likely committing another school violation related to Title IX, which is retaliation. Title IX prohibits retaliation against anybody for bringing a Title IX case or being a witness in Title IX case. This type of behavior could be construed as some form of retaliation due to its intimidating nature. So now you’re not only going to have to deal with the Title IX case, but also another school discipline case for retaliation. It’s a really bad idea to confront anybody involved in the Title IX case.
#3 Worst Mistake
Not saving photos, videos, texts, emails or other communications with either the accuser or witnesses involved in the case. I’ve seen this happen with my clients a number of times. Every time I shake my head.
For instance, the client comes in and says, “Okay, so I met this girl. We had some fun together. We drank or we hooked up. We did X, Y, and Z, but it was completely consensual. I know so because even the next day she contacted me and she sent me a text saying what a great time she had. She sent me cute little videos and photos asking me about my day and telling me about her day.” This is all great information because it goes against any allegation that the accuser might say that the encounter was not consensual.
This is awesome material. I want it. So, I say to the client, “Okay, give me your phone. Let’s screenshot that. Send me a copy. What can we do with that?”
And then the client says, “Oh, I deleted it.” And my jaw hits the ground. I’m like, “Why would you delete something like that, it is so powerful and so helpful to your case?” And the client might say, “Well, you know what? I didn’t want to see her again, and I just wanted to get rid of it, and I just didn’t want it anymore.”
Unfortunately, when that happens, particularly where there’s material in there that is what we refer to as exculpatory or helpful to your case, it’s a huge blow because now we’ve lost that evidence forever. It’s hard to prove that the accuser sent those helpful texts or photos or videos, etc. So, it’s a really bad idea. Never ever, ever delete photos, texts, emails, videos that have anything to do with the case, the accuser or any witnesses to the case.
#2 Worst Mistake
Not using an attorney as your advisor. In a Title IX case, you’re entitled to have someone by your side. They call that person an advisor. That person does not have to be a lawyer, although we highly recommend that it be a lawyer. I suggest you get a lawyer, particularly a lawyer who has some trial skills and some trial experience because those skills are going to be helpful in a Title IX case. Particularly under the new regulations. Now your advisor is the only person who can cross-examine any witnesses and the accuser at any Title IX hearing.
Now, your history professor might be a great history professor. They might be a good friend. Your guidance counselor might be the same. Your parent might be your best friend in the world and you trust them implicitly to handle all these things. But it’s just not the same as having a lawyer with trial experience as your advisor for a number of reasons.
One is that cross-examination is very much a learned skill, which lawyers spend years honing to do it the right way. But beyond just the basics of being able to cross-examine a witness, it’s a very uncomfortable situation, even for a lawyer. It’s a very uncomfortable to talk to a female or even a male about sexual topics, particularly anything that comes close to rape, such as any non-consensual sexual contact, which is most of what Title IX cases are. It’s not an easy thing to do. To do it effectively, you must have the experience to put all that aside and the knowledge and the skill to cross-examine someone effectively.
That’s just one facet as to why you should have an attorney. But the other part of it is developing an overall strategy for your defense. An attorney, as opposed to a friend, a teacher, a parent, or some other type of advisor, is going to think of everything strategically. Everything you do, everything you say, everything you write, the attorney can advise you whether, to do it or not. Number two, what should go into that. They will also help you craft the right statement and right argument so that you’re making sure that you’re preserving your rights and you’re doing the right thing for yourself. It is extremely important to not have someone other than an attorney be your advisor.
In the same realm, do not go it alone. You will not be doing yourself any favors. Quite frankly, when the matter gets to a hearing, you’re going to be required to have an advisor because you’re not allowed to cross-examine the accused yourself. You have to have an advisor of some kind doing that. If you haven’t gotten your own advisor at that point, the school’s going to give you one. That person is coming to the case very late and must do a lot of catch up. We think it’s really important, talk to an attorney, get them as your advisor right at the outset of this case. It’s going to help you out a lot. Not having an attorney as your advisor is a big mistake.
#1 Worst Mistake
The number one, the top, the worst mistake you can make in a Title IX case is apologizing to your accuser.
Consider this scenario. You met this person maybe at a party or maybe you already knew them and had a crush on them. Maybe you had wanted to date them for a long time. You like the person. You finally got to hang out with them. You had a good time. Something happened or maybe something didn’t happen. Then the next day or a few days later, you get a text or call from them. They are very upset and saying to you, “I can’t believe you did that to me.” Maybe going on to say you raped, them sexually assaulted, them, etc.
After hearing this, you’re over here scratching your head because you’re like, “Wait a minute. I thought we had a good time. I didn’t realize anything was non-consensual. I thought everything was great.” But you accuser is upset, and you want to console them. You feel guilty. Sometimes you just want to make it go away.
I’ve had some clients say their accuser was just berating them. Firing off texts and calls and having other people call them and saying, “If you just admit what you did, we’ll stop. We’ll leave you alone forever. Just admit you raped me. Or just admit it wasn’t consensual. Just admit you touched me.”
After a while, the client / accused can get worn down. Sometimes they say will say things that aren’t true in their minds just to make it stop. Just because they start thinking back or they’re afraid. Or they’re thinking the accuser, maybe didn’t really have a good time. Our client feels bad about that. That’s okay. It shows empathy on the part of the client.
But at the same time, taking your phone or computer and drafting that text or that email, or way worse, a video saying, “Hey, I’m so sorry for what I did. It was really wrong. I feel horrible about it,” and sending that to them is just about the worst thing you can do. It totally torpedoes your case because it’s hard to take that back. Plus, you know that the accuser immediately saved that text, they screenshotted it, or they took another device and recorded it to make sure they had it. That’s very powerful evidence against you in this Title IX case. It’s usually hard to overcome.
We cannot stress enough that you should never, ever, ever apologize, particularly in writing, particularly over text or email in a Title IX case. That is the number one killer to your case. It really makes it 10 times more difficult to exonerate you for those Title IX Charges.
If you have any questions, please feel free to contact our office and we would be happy to speak with you.