A few tips on facing a sex crime accusation

Being accused of a crime is hard to handle in general. Being accused of a sexually based crime is significantly worse. Accusations of this nature alone are enough to alienate friends, family, and employers. In America, everyone suspected of a crime deserves a fair and competent defense. If you should find yourself dealing with an accusation of a sex crime, remember to follow some simple advice: stay quiet, get a lawyer, and stay calm.

When dealing with such accusations at academic institutions, issues beyond legality might come into play. Suspensions of employment or pay can be instituted with just an accusation. A rigorous and competent defense is necessary to maintain career prospects and reputation.

There are different levels of sexually based crimes and the specific statutes affecting the accused will depend on the state where the incident occurred. If someone is accused of crimes involving the Internet or multiple states, the process will most likely take place in federal court, which can be a lot more expensive to properly handle. At an academic institution, faculty members or students will be subjected to internal rules and investigations that have different rules than traditional American courts.

Though sex crimes can be categorized as either misdemeanors or felonies, they are serious charges to handle. Sex crimes encompass a wide swath of activity including solicitation of prostitution, sexual battery, or indecency with minors. Many institutions of higher education have some power to investigate these crimes and act upon their conclusion.

Beyond termination or suspension, committees at these institutions can also contact law enforcement with their findings. Their recommendations could lead to jail time or fines. There is also the possibility individuals accused of sex crimes can be forced to register as a sex offender. This classification can greatly limit an individual’s residency options, long term employability, and even their mental health.

Stay Quiet

When approached by school administration or law enforcement officials about a possible sexual offense, an accused person needs to remain quiet. Under the Fifth Amendment of the U.S. Constitution, a person cannot be compelled to provide evidence that can be used to convict them of a crime.

It might be tempting to try and explain the situation. The authorities will give a suspect ample opportunity to present their side of the story ultimately to use that information against them in court. When facing a possible indictment for a sex crime, a suspect needs to remain quiet until arrested and informed of their right to counsel.

Exercising your rights might not save your job however. Refusing or failing to answer questions from a committee investigating such allegations might result in termination or suspension.

Get a Lawyer

Hatred for attorneys is widespread. The moment that hatred subsides is the moment  a person needs one. When accused of something as heinous as a sex crime, a good lawyer is a necessary first step. From bail and evidence discovery to witness depositions and potential plea bargains, lawyers for those accused of sex crimes have a lot of work to do. The ordeal might involve months of work for legal staff and result in thousands of dollars in fees. Bottom-dollar shopping for attorneys when facing serious charges is not a smart idea. Attorneys can also help save or regain employment if accusations of sex crimes lead to termination.

Stay Calm

Every day spent dealing with a sex crime accusation will be frustrating and difficult to endure. The overwhelming desire for the process to end can make a suspect act irrationally. This can take the form of premature plea bargains or even pleading guilty before consulting a lawyer. It’s the right of every American to confront accusations of criminal activity to the best of their ability. A suspect can greatly assist their own defense by allowing an attorney to do their job.

Lawsuits database now requires user registration

***Click here, and then click “sign up” at the bottom of the new page to create an account***

After developing the lawsuits database for many months the time has come to restrict access to registered users. All you need is to fill out a quick form and you’re done.

There are several reasons for this change, and I think they are all common sense.

Sensitivity for plaintiffs

These cases are very sensitive. Despite the fact that may plaintiffs move forward under a pseudonym, many do not. In addition, it is not always ideal for plaintiffs to have maximum-wattage spotlights (example here) on their lawsuits at all times.

Key contributors

Currently, a small handful of people are making the majority of contributions to keep the database updated. If possible (knock on wood), I’d like to see them rewarded somehow in the not-too-distant future.

Better analytics

We needed better back-end “dashboard-style” analytics on precisely how many people are using the database. Better analytics on how people are using the database will help me spot problematic areas where features could be more user-friendly, or where a gap in existing features could lead to the development of new ones that users would find particularly useful.

Timely alerts if the database goes down or is significantly revamped

We need a reliable way to send out a major announcement to database users in the event that something happens to it. We had to take the database down in March due to a funding crisis, and restored it later at a new URL. Although I announced the new URL through several channels, I’m certain a sizable minority were not able to find their way back so easily.

Also, at some point over the next three months I will be making some very powerful upgrades to the database in very rapid succession. I will need to point users who may be confused to the right places.

At the end of the day we aim to make our databases extremely user-friendly, authoritative, and insightful. This is a necessary step toward improving the quality of our work for everyone. Thank you for your understanding!

Activism opportunity: sign this open letter to the U.S. Senate!

An entire college generation’s civil liberties are being stripped away from them, and the vast majority of us are not even aware it is going on. This is being done via the Office for Civil Rights of the U.S. Department of Education (OCR), which has issued Title IX compliance “guidance” to all publicly funded colleges and universities. While the OCR insists that this and other directives are not binding, virtually all of our nation’s publicly funded institutions of higher learning have adopted policies in compliance with their guidelines.

Right now, the Senate has been requested to further fund the OCR’s implementation of their directives with $137.7 million, and this request is observing a period of public commentary prior to a decision being made. Commentary is available to be sent to the Senate Appropriations Committee by April 15th.

I have drafted a letter, and amassed over 160 student signatures of support within just several days, calling on this committee to withhold funds from the OCR until they change their guidance to comply with students’ legally protected rights. If you or a student you know is interested in adding your name in support, contact me via my email address by sending me your name and the college/university you attend to jaketg19@gmail.com.

How these guidelines strip my generation of their lawful rights to due process and free speech is elaborated upon within the letter below. We as a generation can no longer allow those in power to conduct themselves in this manner. The student movement to end the OCR’s illegal actions starts today; it starts with your signature.

The Letter

Jake Goldberg & Fellow Students
Prepared for the Subcommittee on Labor, Health and Human Services, and Education, and Related Agencies
Department of Education

Dear Chairman Cochran, Vice Chairwoman Mikulski, Chairman Blunt, and Ranking Member Murray:

I am writing on behalf of myself and my fellow students, whose names are listed below as a pledge of support, to express our strong disapproval for Senator Gillibrand and her colleagues’ request for $137.7 million in FY 2017 for the Office for Civil Rights of the U.S. Department of Education (OCR). We believe that no further funding should be provided to this department until OCR revises its illegal and immoral guidance to our colleges and universities.

Through its 2011 “Dear Colleague” letter (DCL), OCR has severely threatened students’ rights to free speech and due process on our college campuses. The DCL fails to explicitly differentiate offensive speech from sexually harassing conduct. This was not always the case with OCR guidelines. In OCR’s 2001 Guidance, acceptance of the Supreme Court’s Davis v. Monroe delineation between free speech and sexual harassment was unequivocally stated. In 2003, OCR’s DCL once again clearly substantiated the separation between offensive expression and sexual harassment. However, these protections were lost with the issuance of the 2011 DCL, which lacked any substantial speech protective directives. This lack of safeguarding free speech enabled OCR’s 2013 Findings Letter with the University of Montana to further jeopardize our rights. This document created a broad definition of sexual harassment by defining it as unwelcome conduct of a sexual nature that does not have to be objectively offensive. Though expressed as non-binding, this definition has still been widely adopted by our campuses all across the country. By allowing vague and far-reaching restrictions on speech to be incorporated into sexual harassment policies, DCL’s directives have led to the deprivation of our constitutional and contractual rights to free speech and expression.

Equally as important is the fact that the mandates set forth in the 2011 DCL have forced our schools to enact policies which effectively deny us of our due process rights when we are accused of violating sexual harassment policies and face disciplinary proceedings. By mandating a preponderance of the evidence standard for vague and far-reaching sexual harassment codes, DCL promotes a standard of evidence that is inconsistent with the severity of alleged conduct. Colleges and universities have responded to the mandates of OCR by establishing biased procedures with no regard to due process protections or a presumption of innocence. There is no reason that sexual harassment cannot be adequately addressed and simultaneously provide all students involved with fair and balanced procedures.

We will never support codes that promote disciplinary proceedings with high risks of error, as such flawed proceedings serve the interests of neither party involved. We will never support overly broad definitions of threatening conduct, as such policies undermine those who truly suffer from deplorable acts of sexual misconduct, and result in innocent people being accused of serious violations. OCR’s guidance does not offer more security for those who genuinely need it. Its guidance allows for the punishing of those of us who hold thoughts and beliefs which others simply don’t wish to hear. Its guidance promotes biased, unfair procedures through illegal mandates that our schools are forced to adhere to. OCR’s guidance does nothing to protect our civil liberties; it destroys them.

Let us be clear. Today our voices number in the hundreds, next month they will be in the thousands, and within a year we will number over a million. We will not go away; we will no longer be silent; we will always be monitoring OCR’s actions. We as students will no longer tolerate unelected, unaccountable bureaucrats usurping our rights to free speech and due process. We will not stop speaking out until our requests become our realities. Our generation has ideals and views that should rise to the stars, yet OCR’s actions leave us suffocating in the strict stripes of their red tape. For these reasons, we ask that you withhold funding for the Office for Civil Rights of the U.S. Department of Education until they change their guidelines to conform with constitutionally established principles of free speech and due process. We appreciate your consideration of this request.

Sincerely,

Lawsuits database back online; updates welcome

Thanks to the generosity of several key organizations and individuals, we at Boys & Men in Education will be able to continue our database work. The lawsuits database has been brought back online at a new link. That link is:

http://titleixforall.knackhq.com/due-process-lawsuits

For now, please send all corrections, updates, and new cases to boysmeneducation@gmail.com.

I am developing a database form that will allow users to directly upload new data to the database. Once the form is submitted, an email will be sent to our management team that new data has appeared in our submission queue. An automatic reminder will notify our management team every few days of every week if there is “unresolved” data in the submission queue. To help save their time, users will also be able to see the submission queue prior to filling out the submission form. Please stay tuned for an update on this feature.

Thank you for your support!

Victory in federal court: college’s attempt to comply with “Dear Colleague” letter may be breach of contract (among other things)

An explosive opinion was handed down by a federal court in Rhode Island on Monday in Doe v. Brown Univ., 2016 U.S. Dist. LEXIS 21027 (D.R.I. Feb. 22, 2016). Judge William Smith refused to dismiss a complaint filed by a male student who was suspended from the school for 2.5 years after being found responsible for sexual misconduct in connection with the alleged sexually assault of a female student. John Doe claimed the encounter was entirely consensual.

We won’t chronicle the court’s lengthy decision in detail, but a few things are noteworthy.

The court looked with a jaundiced eye at the way colleges handle allegations of sexual misconduct: “. . . there is a fundamental question whether the way in which universities have chosen to respond to allegations of sexual misconduct in response to the Dear Colleague Letter is appropriate given the criminal nature of some of the allegations involved . . . .”

The court referenced the perceived backlash against male students created by the climate of guilt fostered by the “Dear Colleague” letter. It cited some writings familiar to our regular readers: See, e.g., Max Kutner, The Other Side of the College Sexual Assault Crisis, Newsweek (Dec. 10, 2015) and 28 Members of the Harvard Law School Faculty, Opinion, Rethink Harvard’s Sexual Harassment Policy, The Boston Globe (Oct. 15, 2014),

The court noted: “‘It is well established that a school’s failure to prevent or remedy sexual harassment of a student, including sexual assault, may violate Title IX.’ . . . . However, ‘it is equally well established ‘that Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.'” The court proceeded to detail the male student’s allegations to determine whether, if true, they stated a claim for which relief may be granted (which will allow the case against Brown to proceed to discovery).

The court held that Doe has pled “facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding.” Among other things, John Doe alleged that Brown ignored exculpatory evidence, including the alleged victim’s own testimony in the her complaint to the school that she had in fact articulated consent. Most important, he has alleged particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding. The court wrote:

Plaintiff’s Complaint in this case does include specific allegations related to gender bias as opposed to bias against students accused of sexual assault. Specifically, the Complaint includes the following allegations concerning Brown’s gender bias:

• Upon information and belief, one former Brown employee stated that Brown treats male students as “guilty, until proven innocent,” that Brown has “loaded the dice against the boys” and that the fact-finding process in cases of sexual misconduct at Brown operates under the assumption that it’s always the “boy’s fault.” (Compl. ¶ 98, ECF No. 1.)

• Upon information and belief, one Brown professor stated that “there is gender bias that is overwhelming at Brown” when referencing sexual misconduct cases at Brown. (Id. ¶ 100.)

• Upon information and belief, in December 2014, a Brown professor held a [27] debate to discuss rape issues on campus. During the debate, one female debater remarked that males are “bad” and females are “victims” when it comes to sexual misconduct. The Brown professor stated that these remarks are consonant with the culture of thinking on Brown’s campus. (Id. ¶ 101.)

• Upon information and belief, Brown’s handing [sic] of John Doe’s case fits within a pattern of showing gender bias toward female students in cases of sexual misconduct, including its conduct in: (i) McCormick v. Dresdale, supra; (ii) a sexual misconduct case against former Brown student Adam Lack (Class of 1997); and (iii) other instances documented in the Brown Daily Herald (April 29, 2010) and the Brown Spectator (May 26, 2012). (Id. ¶ 123.)

Among the most surprising aspects of the decision was the vitality of John Doe’s claim for breach of contract. The court held that the student handbook constitutes a contract, and the school is bound to honor the promises it creates. Among the most explosive aspects of the decision: the court held that the school’s attempt to comply with the “Dear Colleague” letter can be a breach of contract:

Doe first alleges that Brown failed to conduct a pre-charge investigation of Jane Doe’s complaint prior to directing Plaintiff’s immediate removal from campus. (Pl.’s Opp’n 26, 28, ECF No. 15.) Doe alleges [37] this to be a violation of the statement in Brown’s Code that “[s]tudents and student organizations charged with offenses” have the “right[] . . . [t]o be assumed not responsible of any alleged violations unless she/he is so found through the appropriate student conduct hearing.” (Ex. A to Compl. at 7, ECF No. 1-1.)

Brown counters that “[n]owhere is there any such restriction imposed upon Brown regarding interim measures during an investigation and a disciplinary process. In fact, the OCR in its Dear Colleague letter specifically mandates that a university may invoke interim measures as part of its Title IX response to sexual harassment allegations.” (Def.’s Reply 15, ECF No. 17.) However, the Code also states that “[a]ll members of the Brown University Community are entitled to . . . the right to attend, make use of or enjoy the facilities and functions of the University subject to prescribed rules.” (Ex. A to Compl. at 3, ECF No. 1-1.) The question here is not whether Brown was following the OCR’s guidance; it is whether Brown’s actions violated the reasonable expectations of a student based on its Code. The Court finds that, taking Doe’s allegations as true, Brown’s decision to ban him from campus prior to conducting an investigation states a plausible claim for a breach of the rights outlined in the Code to be assumed not responsible until proven otherwise, and to enjoy use of Brown’s facilities.

In addition, and also very important, the school’s conduct restricting John Doe from presenting his case may also be a breach of contract:

Doe next alleges that Brown failed to allow him “an opportunity to offer a relevant response” to the evidence against him, as required by the Code. (Pl.’s Opp’n 27, 29, ECF No. 15; see Ex. A to Compl. at 7, ECF No. 1-1.) Specifically, Doe contends that Brown:

improperly redact[ed] relevant information from Plaintiff’s evidence, assembl[ed] Plaintiff’s text messages out of order and out of context, exclude[ed] the majority of Plaintiff’s character witness statements that spoke to his credibility, disallow[ed] Plaintiff from making a full “midpoint” statement, in violation of the Opening and Questioning Timeline, and refus[ed] to consider the Facebook photos showing lack of any “bruising” on Jane Doe based on baseless privacy concerns.

(Pl.’s Opp’n 29, ECF No. 15.) Although the term “relevant” is vague and undefined, the Court finds that Plaintiff has – at the motion to dismiss stage – presented sufficient allegations to state a claim that he was prevented from presenting a “relevant” response. In particular, the fact that Plaintiff was prevented from making his “midpoint” statement may be a violation of the Code, depending on what the facts show.

All in all, this is among the best decisions to date handed down for presumptively innocent college students accused of sexual assault. It ought to send shockwaves through the rarefied halls of academia.

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