Allegations of sexual harassment or sexual assault at a university can have lifelong consequences for the accused.
Until recently, Central Michigan University’s sexual misconduct policy required that a finding of responsibility for sexual assault required that the university either issue a suspension or expel the student who has been found responsible.
So, why is this a problem? Sexual assault is bad, right? Shouldn’t someone who is found responsible for sexual assault face a severe consequence?
Well, there are some problems with this in the university setting. First, the university’s sexual misconduct policy could result in a finding of responsibility for a sexual assault, even when the accused student has not engaged in any activity that would be considered illegal under Michigan law. The definition of sexual assault in the university’s policy includes actions that are not against the law.
Second, the university’s process for determining responsibility for a sexual assault provides significantly less due process than a student would receive if they were charged criminally with sexual assault. Many times, they don’t get an opportunity for a hearing, to test the credibility of witnesses, or for a determination by a truly neutral body.
Third, the standard of proof required by the university for a finding of responsibility for a sexual assault is significantly lower than the burden in a criminal case. In criminal cases, the burden of proof that is required is beyond a reasonable doubt. That means that a prosecutor has to prove to a jury beyond all reasonable doubts that a defendant is guilty of a sexual assault under the law. In university Title IX proceedings, the burden of proof is a preponderance of the evidence. This means that the university investigators need to find only that it is more likely than not that the accused student has committed a sexual assault.
This all means that it is much easier in a university proceeding for an innocent student to be found responsible for sexual assault.
A finding of responsibility for sexual assault can have lifelong consequences on a student, particularly when that finding results in a suspension or expulsion from the university. A student who is expelled from a university in a Title IX proceeding is unlikely to be admitted at another university. It may result in the student never being able to complete their education, derailing their future. Suspensions, especially lengthy ones, can have similar results. It is difficult to explain to employers disruptions in your education, and if you are required to submit college transcripts to a prospective employer, the suspension will be reflected there.
In response to new directives from the US Department of Education, Central Michigan University has changed their policy to give the Office of Student Conduct (OSC), which imposes discipline on a student found responsible for sexual assault, more latitude in the kind of discipline that they can impose. A finding of responsibility for sexual assault no longer requires a mandatory suspension or expulsion. Other measures of discipline can be utilized by the OSC, such as a reprimand, removal from CMU housing, campus restrictions, ordered participation in educational programs, revocation of CMU privileges, disciplinary probation, or no contact orders.
What remains to be seen is whether the rule changes will change the way that the Office of Civil Rights and Institutional Equity (OCRIE, the investigating office) and the Office of Student Conduct (OSC, the sanctioning body) impose discipline. In recent history, the culture of the offices has been to provide little due process to accused students, and to impose serious discipline for findings of responsibility. Whether or not the culture will undergo actual change as a result of the latest directives from the US Department of Education remains to be seen.
What is positive about these changes, however, is that students have additional options in fighting against a suspension or expulsion. Even if the OCRIE office makes a finding against them, there is still an opportunity to present what is called an “impact statement” to the Office of Student Conduct to try to avoid the serious sanctions of suspension or expulsion. This allows the student to present evidence that they are not a risk to other students and that there are alternative disciplinary measures that adequately address the allegations. The OSC can now take these factors into account when imposing discipline.
If you have been accused of sexual misconduct at Central Michigan University, or at another Michigan university, you can reach out for help in defending yourself. Blanchard Law has an experienced Title IX attorney who defends students accused of sexual assault in both Title IX proceedings and criminal investigations.
