Investigating the Intersection: Title IX Complaints and Criminal Investigations

June 5, 2024
title ix

Students involved in campus sexual assault cases often come to us full of confusion surrounding the intersection of the Title IX complaints and criminal investigations.  While the same set of allegations can be simultaneously investigated by a campus Title IX office and law enforcement, the processes play out quite differently and have vastly different legal implications.  This article provides an overview of key differences between the two processes.

Filing a Title IX complaint

A Title IX complaint is investigated by campus Title IX investigators tasked with gathering evidence to determine whether school policies have been violated.  Although colleges and universities have campus safety officers, they do not investigate Title IX complaints.  In conjunction with filing a Title IX complaint, a complainant (i.e. the harmed student) is also advised of their right to file a police report.  Title IX complainants do not have to file police reports, and Title IX complaints are not automatically referred to law enforcement for criminal investigation.  If a complainant does file a police report, a criminal investigation does not relieve a school of its obligation to investigate the matter according to its Title IX process.

Timeline of Investigations

The timeline for a campus Title IX investigation is quite different from a criminal investigation.  Under the Title IX regulations issued by the Department of Education’s Office for Civil Rights, schools must conduct prompt and equitable investigations.  Most schools strive for investigations to be completed between 60 and 90 calendar days following receipt of a Title IX complaint.  Although investigations may take longer in certain circumstances, due to factors such as the number of witnesses to be interviewed or intervening school breaks, schools generally establish end points for investigations.  Unlike the Title IX process, criminal investigations do not contain time constraints.  Police investigations can span months, and sometimes even years. Because law enforcement officers have a more sweeping ability to collect evidence using tools like search warrants and working in conjunction with other investigative agencies, criminal investigations often take longer.

No Contact Orders and Civil Protection Orders

After a student files a Title IX complaint, a school almost always issues a No Contact Order, which is a directive that instructs the complainant and respondent (i.e. accused student) not to have any direct or indirect communication and contact with each other.  A violation of a campus No Contact Order may lead to additional student misconduct charges under university policies.

Even after a school has issued a No Contact Order, a student may still file for a civil protection order in a court.  This type of order can only be issued after a judicial proceeding where the alleged victim provides sworn testimony.  While the steps for issuing a civil protection order may differ in each state, the process generally involves issuance of a short term order after the court has only heard evidence from the alleged victim and then the scheduling of an evidentiary hearing where both parties can present evidence as to why the order should or should not be granted.  A violation of a civil protection order can result in criminal charges.

Constitutional Rights and the Burden of Proof

The legal rights conferred to students in Title IX proceedings and criminal investigations also vary greatly.  Students involved in Title IX cases at public universities have due process rights.  At private schools, students have the rights specifically outlined in the school’s Title IX process.  Regardless of whether a student attends a public or private school, there is no Fifth Amendment right to silence.  Rather, an accused student can choose whether to participate in a campus Title IX investigation.  However, because the burden of proof is only a preponderance of the evidence, which means more likely than not, if an accused student does not respond to a Title IX complaint and address the claims, the odds are that the student will be found responsible for a university policy violation.

When an accused student faces a criminal investigation, the student is cloaked with constitutional protections at all points in time.  The student maintains a right to silence and that silence cannot be used against the student.  Moreover, to proceed with the filing of criminal charges, law enforcement officers must establish that probable cause exists.  Probable cause exists when police obtain facts or circumstances that would lead a responsible person to believe that a crime has been committed.  However, to be convicted of a criminal offense, there must be proof beyond a reasonable doubt, which is the highest burden of proof in our legal system.

High Stakes

Regardless of whether a student is involved in a campus Title IX process or a criminal investigation, the stakes are high and the outcome of the case could be life changing.  For this reason, it’s essential that all students work with attorneys experienced in navigating the intersection of Title IX complaints and criminal investigations.  For assistance, please contact our Student & Athlete Defense attorneys Susan Stone at SCS@kjk.com; 216.736.7220, or Kristina Supler at KWS@kjk.com; 216.736.7217 or complete this contact form.