Using Experts In Title IX Proceedings

When a student is accused of sexual assault or sexual misconduct at a college or university, the process used by the school to investigate those accusations and issue sanctions can seem incredibly unfair. The process sometimes feels more like a witch hunt than a proceeding where the student is receiving due process under the law.

The accused student, in a university proceeding, has far less rights than they would have if they were accused of the same conduct in a court of law.

Very often, the same person who is investigating the claims of sexual assault are making findings and recommendations to those who will potentially impose sanctions against the accused student. The investigator often simply takes the word of the student making the accusation, without challenging their statements or looking at outside evidence. There is no opportunity for the accused student to challenge the statements of their accuser through cross-examination or any other method of confrontation. There are no rules of evidence that apply to protect the accused student from unfair or irrelevant evidence being submitted.

The accused student, however, does have the right to submit their own evidence to the university investigator. Since the rules of evidence that would normally apply in court don’t apply to these proceedings, this is an opportunity for the accused student to use the system to their favor in their use of experts in the Title IX proceeding.

First, the accused student is able to submit a report of an expert in writing. Unlike in court, the expert will not have to testify, will not be subject to a determination that the expert is qualified, will not be subject to cross examination, will not have that evidence challenged by the other party. The accused student will simply be able to submit the report of the expert, and have the expert’s conclusions considered when the school is making findings or determining sanctions.

Second, the accused student is able to submit evidence from experts for multiple purposes. An accused student may want to submit expert evidence that addresses their innocence. For example, the accused might have a doctor review photographs of injuries and opine whether or not they were caused in the way that the accuser claims, or whether the age of the injuries match the date of the alleged incident. The accused might submit evidence from a forensic psychologist that addresses the mental health issues of the accuser, or the inconsistencies of the accuser’s report.

The accused student may also want to submit expert evidence that addresses mitigating factors for purposes of limiting the sanction that is imposed. For example, the accused may want to undergo a psychosexual evaluation in order to prove that they are low risk to commit a sexual offense.

Third, the accused student will be able to submit expert evidence that might not be admissible in a court. For example, the accused student may want to undergo a polygraph examination (lie detector test) to prove that they are telling the truth about the alleged sexual assault or misconduct. Normally, the results of a polygraph examination would not be admissible in a court of law, but the results can be submitted to investigators in a Title IX investigation.

The best way to handle a university investigation into allegations of rape or other sexual assault is to be as proactive as possible in addressing the allegations. Being proactive includes identifying the right experts to use in the circumstances of your case, and obtaining reports from those experts within the short time period of the university investigation. This will require that you consult with an attorney who has experience in defending cases of sexual assault, and has connections to experts who can assist you within a short time period.

If you have been accused of sexual misconduct at a Michigan college or university, Keeley Blanchard is an experienced attorney representing students accused of sexual assault and sexual misconduct in Title IX proceedings at the university and in criminal investigations and proceedings.