Facing an allegation of sexual assault or sexual misconduct at a college or university can be an incredibly intimidating and confusing process. The investigation can move extremely fast, and you don’t have much time to consider whether or not you should submit to an interview with the Title IX investigator who will be handling the matter.
All the while, you’re facing serious consequences. At the university level, it is not uncommon to see lengthy suspensions or expulsions when a student is found responsible for committing sexual assault or misconduct. And anytime there is an allegation of sexual assault or misconduct made to the university, there is always the possibility that the police will begin a criminal investigation as well.
When police are conducting an investigation into an alleged sexual crime, answering whether or not to submit to an interview is easy. It’s almost always no. In criminal cases, your right to remain silent is protected, and can’t be used against you. The burden is on the prosecuting attorney to prove your guilt beyond a reasonable doubt. That’s a high standard for them to meet, and making statements to the police (even denials) that can later be twisted and used against you is never a good idea.
Deciding whether or not to submit to an interview with the school’s Title IX investigator is a much tougher decision. In many ways, it is a balancing act.
Anything you say to a school investigator can be used against you in the event that there is a criminal proceeding later on, and any information gathered from you will likely be shared with the police if they begin investigating the allegations. Criminal penalties for sexual assault in Michigan can be up to life in prison in some cases. Ensuring that you don’t talk yourself into being criminally charged should be the number one priority. You have to take into consideration the likelihood of criminal charges when deciding to submit to an interview with the school’s investigator. If criminal charges are highly likely, it is probably best not to make any statements to the school’s investigator.
On the other hand, your silence will be used against you by the school in making a determination about university policy violations and sanctions. The school only has to determine that it is “more likely than not” that you engaged in sexual assault or sexual misconduct in violation of their policy. This is a far lower standard of proof than the “beyond a reasonable doubt” standard seen in the criminal system. If you remain silent, it is not difficult for the school to find that it is more likely than not that you committed a violation, because they are only relying on the word of your accuser.
Given the serious sanctions that can be imposed, including suspension and expulsion from the school, it may be necessary to submit to an interview with the investigator. However, if you are going to submit to an interview with the investigator, it is imperative that you go into the interview highly prepared, and with an understanding of what issues are going to be helpful to you and what issues will not be helpful.
For example, the deciding bodies in university sexual misconduct investigations are usually highly sensitive to attacks on the character of the accuser. Referencing their past sexual history or past character does not play well to the people who are going to decide your fate.
Further, if consent is at issue, it is important to carefully establish every small detail that indicated that the accuser consented to the sexual activity. It is important to be prepared to describe every word that was said, every movement that was made, and every fact that might indicate that the accuser consented.
Making the decision to testify is something that you should decide in consultation with an attorney. You are permitted in these investigations to have an “advisor” or “support person” present every time you meet with the Title IX investigator. This advisor or support person can and should be an attorney who is experienced in handling Title IX matters, as well as criminal investigations. Your attorney can help you assess whether criminal charges are likely, and if you should submit to an interview in the first place. If you decide that you should submit to an interview, the attorney can assist you in preparation for the interview, and attend the interview with you to ensure that you don’t say anything that will be harmful in the event of a criminal investigation. This will give you the best chance to avoid criminal charges, and to prevent sanctions from being imposed by the university that will have life-long consequences.
If you are currently facing allegations of sexual assault or sexual misconduct at a college or university, Blanchard Law has an attorney who is experienced in handling Title IX investigations, as well as criminal sexual conduct matters. Contact us as soon as you receive notice of the investigation.
