What to do if you're falsely accused of campus sexual assault
Across the country, young men (and a few women) in college are being accused of sexual assault for sexual encounters that may not have actually been assaults. These accused students are thrust into a system in which the accused have a target on their back from a college or university under pressure from the federal government to look tough on sexual assault.
These accused students, naively believing that the truth will set them free, are expelled based on no evidence other than an accusation. They are not allowed meaningful due process or any ability to properly defend themselves. Time and time again, schools have bent over backwards to ignore evidence that the accused was innocent. The reason for this is pressure from the federal government to find more accused students responsible, rather than the truth of the allegations.
Knowing that, there are a couple things to do immediately once an accused student receives notice of the accusation.
1. Understand that the school investigator is NOT your friend
Too often an accused student receives a notice to come in and talk to the school's Title IX investigator or another administrator responsible for investigating sexual assault allegations, and believes that if he (or rarely, she) will just explain what happened everything will be fine. This is wrong. Due to the attention this issue is receiving in the media and among politicians, schools are gunning for accused students to hold them up as an example that they take sexual assault accusations seriously.
These investigators are often trained that false accusations are rare, which not-so-subtly suggests to administrators that they should believe every accusation. This means that the accused student is already deemed responsible from the start, and they have to clear a massive hurdle to prove their innocence.
Also note that last line: "Prove their innocence." Yes, unlike in a criminal court, where sexual assault is an actual crime and not a disciplinary matter, the burden of proof is on the accusing side to prove that a crime occurred. In a campus proceeding, the accused must prove that a crime didn't occur in order to be deemed innocent. It's completely backwards, but it's the reality we now live in.
2. Talk to a lawyer before you speak to the school
Too many accused students wait until after they're expelled to hire a lawyer, believing the school will conduct a fair hearing and realize that the sex was obviously consensual. This is ususally not the case, and accused students need to speak to a lawyer as soon as they are asked to come in and explain themselves.
Some lawyers will meet with an accused student for some general advice without requiring payment. This will be valuable advice to guide an accused student through the process and let him know what he can expect going forward. Hiring an attorney as soon as the accusation comes in is obviously the best option for those who can afford one.
Attorney Patricia Hamill, who represents accused students, said that she can be the most effective if a student calls her on day one. At a recent symposium in Washington, D.C., she said that being involved in the process from the start allows her to get the accused student the best possible process within the existing context. Being involved early on also allows her to keep a record of the process that can be used in a future lawsuit against the university if it deviates from its own written procedures and constitutional due process.
Schools often don't advertise that students are allowed to bring an attorney or adviser along with them when they speak to the investigator, but showing up with an attorney may work.
3. Learn the school's process
Read over what the school claims it will do during an investigation. This allows the accused student to know what to expect, and to speak up if the school isn't following its own process.
For example, if the school allows a hearing on accusations conducted by a panel of administrators or students, Hamill suggests researching those people to look for bias. Accused students might need to really dig on social media or see if any of the panelists have spoken to the school paper on the issue. Recognizing and arguing against biased panelists could be the difference between an expulsion and a finding of "not responsible." And if the school refuses to remove biased panelists, that will help in a future lawsuit.
4. Demand the specifics of the allegation
Once a student is informed that there is an accusation against him, he must ask (as politely as possible) for the specifics of the allegation. It seems impossible that a school wouldn't provide this information, but that is the current reality. And one can't defend himself when he doesn't know the details of the accusation.
5. Try to figure out why the accuser would lie
When school administrators are told that false accusations are rare and the possibility should be ignored, the burden is put on the accused to prove the accusation false. Administrators are reluctant to believe that an accuser would simply make up a story, so the accused needs to have an answer to the question: "Why would she lie about this?"
Many accusations come after the accuser is rebuffed by the accused. Sometimes accusations come after the accuser cheats on her significant other. Sometimes the accusation comes after a feminist convinces the accuser that she had been sexually assaulted. Often times the accuser simply regrets the encounter and re-evaluates it as rape. At least one accusation arose after the accuser's mother found a diary detailing her sexual encounters.
There are many, many more reasons why an otherwise consensual sexual encounter would be described as sexual assault days, weeks, months — sometimes even years — later. An accused student needs to figure out why he is being wrongly accused and present his case.
Following these guidelines as soon as an accusation comes in will not guarantee a fair outcome (again, schools seem determined to find a student responsible), but they will give an accused student the best possibility of continuing his education and potentially being free of the "rapist" label.