How Is a Title IX Complaint Filed?
The federal Title IX regulations state that only an alleged victim of sexual harassment – referred to as a complainant – can “file” a formal complaint. A formal complaint must be in writing and signed. In certain instances, a school’s Title IX coordinator can also “file” a complaint. Two examples of situations in which a Title IX coordinator might file a complaint include when an institution has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority or when a Title IX coordinator receives multiple reports of sexual harassment involving the same respondent. When a Title IX coordinator signs a formal complaint, however, the coordinator does not become the complainant.
Does a school have to accept a Title IX complaint from a student who is not enrolled at the institution?
Yes, but only if the complainant is attempting to participate in the school’s educational programming or activities.
Unlike Title IX cases, criminal cases do not require a formal written complaint signed by an accuser. A police report made by anyone may be sufficient to trigger an investigation by law enforcement officers that culminates in the filing of criminal charges. Just because law enforcement officers conduct an investigation does not mean that criminal charges will be filed.
After a Complaint Has Been Filed, Is a Title IX Investigation Required?
In the academic setting, once a complaint has been filed, schools must investigate reports of sexual misconduct that fall within the scope of conduct covered under the Title IX grievance process. However, the Department of Education has explained that “Title IX is not the exclusive remedy for sexual misconduct or traumatic events that affect students.” So, when a report of misconduct does not fall within the scope of conduct covered by Title IX, perhaps because the alleged behavior does not meet the definition of sexual harassment or because the alleged conduct falls outside the jurisdiction of the Title IX, schools may still investigate the complaint under its own code of conduct.
When a complaint is filed with the police, an investigation is not always required. If the report does not involve an allegation of criminal conduct or if the report involves actions outside the jurisdiction of the police department, an investigation may not be required.
Are Campus Title IX Complaints Usually Reported to the Police?
Generally, campus Title IX complaints are not reported to the police. However, schools are required to notify complainants of their right to pursue a report with law enforcement.
How Long Does an Investigation Last?
Most academic institutions state that a Title IX investigation will last for approximately 60 days. The Department of Education previously identified a 60-day time frame for resolving Title IX complaints. For this reason, most schools still state that an investigation will span 60 days. Under the federal regulations, schools can temporarily delay the TItle IX grievance process for “good cause.” Examples of good cause include the absence of a party’s advisor, a concurrent criminal investigation, or the need for accommodations for a disability.
There is No Guaranteed Timeframe for Criminal Cases
In criminal cases, there is no specified timeframe for an investigation. While prosecutors prefer that cases be investigated without delay, there is no requirement that law enforcement conclude an investigation within 60 days or any other period. Indeed, some investigations span mere weeks, while others last months and perhaps more than a year.
How do Constitutional Rights factor into Title IX cases?
In campus Title IX cases, complainants and respondents are generally not afforded constitutional protections the way a defendant in a criminal case has constitutional rights. In a criminal case, the Fourth Amendment guarantees a suspect the right to silence and protection against unreasonable searches and seizures. The Sixth Amendment guarantees an individual the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you.
How do criminal cases differ from Title IX cases in judging, sentencing, and punishment?
How Adjudication and Decision Makers Differ in Title IX Investigations vs. Criminal Cases
Title IX cases and criminal cases have different decision makers with vastly different legal training and experience. Post-secondary schools must hold live hearings in which there is generally a panel of decision makers who are campus professors and administrators with limited TItle IX training. While some schools retain retired judges to serve as hearing officers who rule on evidentiary issues, the majority of the time a hearing officer is simply a member of the hearing panel, again with little to no training on evidentiary issues such as relevancy. Criminal cases, on the other hand, are overseen by judges. Juries are the decision makers. Although members of the jury are ordinary citizens in the community, they weigh evidence based on instructions given to them by judges.
Standard of Proof in Title IX investigations vs. Criminal Cases
The standard of proof in the majority of Title IX cases is a preponderance of the evidence, which means more likely than not, or 50% plus a feather. A preponderance of the evidence is the lowest burden of proof, whereas proof beyond a reasonable doubt is the highest burden of proof in the legal system. Criminal cases are subject to proof beyond a reasonable doubt. Each state defines proof beyond a reasonable doubt in its jury instructions, but generally, judges tell jurors that proof beyond a reasonable doubt does not mean every single doubt, but rather beyond a doubt that’s reasonable.
Punishment in Title IX investigations vs. Criminal Cases
When it comes to punishment, the stakes are high for a respondent in either proceeding. That being said, Title IX sanctions are limited to actions a school can take against a student in an educational setting. For example, punishment such as writing a research paper, disciplinary probation, suspension or expulsion. The penalties in a criminal case can be far more devastating. Sentences can include prison and sex offender registration.
For responses to Title IX frequently asked questions, please visit our the FAQ section of our Title IX page. To learn more about the Title IX investigation process, you can download our infographic on the subject. If you find your self accused of Title IX violations or facing criminal charges, please don’t hesitate to contact our attorneys.