Title IX of the Education Amendments of 1972 protects students from sex discrimination, sexual harassment, and unequal treatment based on their sex. If a student alleges that they have been sexually assaulted on campus, the school must respond and investigate pursuant to the requirements of the Title IX regulations. However, Title IX proceedings do not prohibit the accuser from filing a personal injury claim or pursuing criminal charges against the defendant.
KJK’s Student & Athlete Defense team, represents students, faculty members, and others involved in Title IX cases. We can discuss how accusers can raise personal injury claims related to Title IX violations and their role in the justice system. Here is everything you need to know about this complicated process.
Title IX and Sexual Assault
Title IX’s purview is simple, as it states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
However, court decisions related to this law have evolved over time, creating greater obligations for schools, colleges, universities, and academic programs that receive federal funding to enforce federal regulations. Schools are required to create their own policies for the identification and enforcement of Title IX’s requirements. Therefore, the definition of sexual assault and other key terms can vary from one educational institute to another.
For example, The Ohio State University’s definition of sexual assault is:
“Any sexual act directed against another person, without the consent of the complainant including instances where the complainant is incapable of giving consent. Sexual assault is an umbrella term that includes: non-consensual sexual contact, non-consensual sexual penetration, incest, and statutory rape.”
Sexual assault is considered a form of sexual violence, which in turn is regulated under Title IX. Students have the right to be free of sex discrimination, including acts of sexual violence. If a school receives a report of sexual misconduct, it must investigate what happened and afford victims prompt and equitable resolutions. The school must also have a Title IX coordinator and written policies in place that guide the process.
Schools are required to do the following upon receipt of a Title IX violation:
- Ensure that the complainant and respondent are aware of their rights under Title IX
- Provide interim support measures, such as housing assistance, academic support, counseling, mental health services, and legal assistance
- Conduct an investigation by an impartial investigator
- Explain that retaliation is prohibited under Title IX
Title IX’s Private Right of Action
Courts have ruled that individuals in Title IX actions have a private right of action. This means that if an institution has violated Title IX, a student can file a civil claim against the educational agency. Plaintiffs can file directly in courts even if their school has taken action under its Title IX policies.
How Is a Personal Injury Case Different from a Title IX Action?
Title IX actions represent the school’s response to allegations of sexual discrimination, harassment, or violence. As such, the school is limited to the penalties it can impose on someone. Possible consequences include:
- Expulsion from school
- Suspension from school
- Loss of accommodations
- Loss of scholarships and other financial assistance
- Removal from leadership positions
- Removal from extracurricular activities
- A no-contact order between the complainant and respondent
- Degree revocation
These consequences are significant and should be taken seriously.
In personal injury cases, the court can award financial damages against the defendant. This can put personal assets and financial security in jeopardy.
How Is a Personal Injury Case Different from a Criminal Case?
Sometimes in sexual assault cases, victims may decide to file a civil claim rather than a criminal charge against the defendant. In civil cases, the burden of proof is lower than in criminal cases, where the burden is proof beyond a reasonable doubt. Also, there is much more discovery allowed in a civil process.
Personal injury cases focus on awarding financial damages to the plaintiff for losses they incurred because of an incident. Criminal cases focus on punishing the wrongdoer and deterring similar conduct in the future.
Sometimes, a victim may pursue both civil and criminal remedies. As we have written many times, even when a school responds with Title IX proceedings, this does not exclude criminal charges from being brought in the case. Therefore, a person charged with violating Title IX can face consequences from school, criminal penalties, and financial damages awarded against them. This possibility underscores the importance of having an experienced lawyer represent you if you are facing allegations of sexual misconduct under Title IX.
What Does a Personal Injury Lawyer Do in a Sexual Assault Case?
Personal injury lawyers represent the interests of the person who claims to have been assaulted in civil cases. This often involves the following tasks:
Explain Legal Rights and Options
Personal injury lawyers explain legal rights and options to individuals who have been sexually assaulted. Personal injury lawyers generally work on a contingency fee basis.. This allows the alleged victim to secure information without having to pay legal fees.
Investigate Claims of Sexual Misconduct
Personal injury lawyers conduct independent investigations. They are not limited to the scope of the Title IX investigation. They may investigate the person accused of committing the crime, as well as the school. The lawyer may determine that the school’s response was insufficient under the circumstances and name it as a defendant in the action.
A personal injury lawyer’s investigation may include:
- Reviewing school reports of the incident(s) alleged
- Reviewing police reports
- Interviewing witnesses
- Requesting academic records
- Reviewing personnel records
- Conducting tests on physical evidence
- Reviewing photographic and video proof
Gather Evidence
Personal injury attorneys can gather various pieces of evidence that they can leverage in negotiations with insurance companies, schools, and individual defendants, as well as potentially admit as evidence at trial. Evidence that may be used in Title IX personal injury cases might include:
- Reports: The lawyer will begin by reviewing all official reports related to the incident(s) in question, including the Title IX investigator’s reports, police reports, and the complaint.
- School records: Lawyers may be able to obtain records from schools regarding other infractions or accusations of misconduct to determine if the school has a pattern of not properly or promptly responding to complaints. They may be able to obtain academic records that show how the incident resulted in the victim’s grades decreasing. They could get emails from professors or other school employees.
- Social media messages: The complainant and respondent may have had previous dealings that may be documented through various social media platforms. The respondent or complainant may have posted something about the incident on their social media.
- Text messages: The lawyer may review the complainant’s text messages with the respondent. They may be able to get text messages from other parties if they consent or receive a subpoena.
- Phone logs: Call logs can show the interaction between the parties involved in the case.
- Witness statements: Other people may have witnessed the events that led to the complaint, such as other students, faculty members, or vendors.
- Physical evidence: Physical evidence could include clothing, linens, weapons, or other physical items. The victim could have had a sexual assault kit conducted on them that could contain valuable information.
- Medical records: The lawyer may obtain the victim’s medical records, which may include doctor visits, counseling appointments, a SANE examination, or other medical visits related to the incident.
- Videos: Someone may have recorded the incident or interactions leading up to it. There could also be surveillance footage from a residence hall or other campus locations.
- Pictures: Pictures of the incident, the behavior of the parties involved leading up to the incident, and injuries could be compelling evidence.
In some cases, personal injury attorneys may hire expert witnesses to provide additional support to the victim. The experts may explain how the incident has affected the victim, their future earning capacity, or their mental health.
Negotiate for Fair Compensation
Personal injury attorneys will likely try to resolve the matter out of court. They may ask for a certain amount of compensation in exchange for the victim agreeing to dismiss the complaint. Typically, the plaintiff will sign other releases before the action is concluded.
Prepare for Trial
If the parties are unable to reach a settlement, the personal injury lawyer prepares for trial. They may file various motions with the court, conduct extensive discovery, and attend pretrial conferences.
Represent the Complainant at Trial
At trial, the personal injury lawyer represents the complainant. They speak on their behalf, provide an opening statement, call witnesses, and present evidence. They will cross-examine the defendant and defense witnesses. Also, the lawyer may present expert witnesses to support damages.
Damages that Can Be Awarded in a Title IX Action
Personal injury cases generally come down to how much money someone can be awarded for the harm they’ve suffered. Victims may be able to receive financial compensation for economic and non-economic damages they sustained due to the situation. Economic damages compensate victims for direct financial losses they experienced because of the incident, such as:
- Medical expenses
- Counseling expenses
- Lost wages
- Reduced earning capacity
- Out-of-pocket expenses
Non-economic damages compensate personal injury victims for intangible losses they experience, such as pain and suffering. Notably, the United States Supreme Court has held that complainants in Title IX actions cannot recover compensation for emotional distress damages. However, pain and suffering can be recovered for certain non-Title IX actions.
Contact Our Title IX Defense Team
If you are facing allegations of Title IX violations, contact the KJK’s Student & Athlete Defense team for a confidential review. A lot could be at stake, and we want to protect you.
Related: Title IX Protections for LGBTQ+ Students: Legal and Mental Health Benefits