I have 3 boys. As a parent, I am scared. As a lawyer, I am angry.
Title IX is the federal law that requires gender equality in higher education. Since this law first passed in 1972 it has produced many beneficial changes such as funding equality for college female athletic programs.
However, in 2011, the U.S. Department of Education (DOE) refashioned the law, to require that colleges investigate and punish sexual assaults on campus under DOE required procedures.
What does this mean for the person being accused of the assault?
The accused is not permitted to know what the allegations are before himself (or herself) being questioned.
The DOE rules prevent the accused from being able to cross examine the accuser reasoning that doing so could create a hostile environment, that questioning the accuser could compound the trauma.
The accused is not permitted to have legal counsel.
The standard by which the accused is determined guilty is “preponderance of the evidence”, a civil standard of proof meaning “more likely than not.”
It is these procedures that scare and anger me.
Before misjudging what I have to say as the biased rants of a father of only boys, please note that I was a former Philadelphia prosecutor and I specialized in handling sexual assault cases. That means I worked to put people who sexually assaulted women behind bars. And today, I often represent victims of sexual assault against the institutions that allow sexual predators in their midst. I recognize that accusers can be mistreated in the courts, that some guilty never get prosecuted or go free because of the fear and stigma that prevent an accuser from coming forward.
But there are basic rights that we as Americans know make our country the most special place on earth. These rights are embodied in the term Due Process, which means to know the accusation against you, to confront the accuser with cross examination questions, and to ensure that guilt be proven beyond a reasonable doubt.
Unfortunately the DOE has ignored these basic principles.
So, because colleges are tasked by the DOE to investigate and punish sexual assaults on campus, our sons or daughters could wind up expelled from college due to a process which:
1. Hears the victim’s story
2. Does not allow the accused a lawyer nor the right to ask questions of the victim
3. Does not allow the accused to know what the victim’s story is before the hearing
4. Allows a college created panel of judges, which may include other students, to decide guilt by a preponderance of the evidence.
The only remedy available to a student punished by this process is to hire a lawyer, after the fact, to bring a lawsuit alleging constitutional violations.
Are you scared now too?
Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured. Tony is the founding partner of Baratta, Russell, & Baratta and a member of the Pennsylvania Brain Injury Association (BPIA). Tony is on the board for the Philadelphia VIP, a member of the Million Dollar Advocates Forum for trial attorneys and voted one of Philadelphia’s Super Lawyers 2008-2014.