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Colorado College Students – The Dangerous World Of “Consensual Sex” On College Campuses In The 21st Century Part II of II – This is Part II of a two part series on sexual consent issues on Colorado college campus. Here is a LINK to Part I.
If you have ever been falsely accused of a sexual assault while in college or graduate school then you may already be aware of the important issues I address in this article.
Your sons and daughters will probably experience the most freedom and independence in their young lives while in college. They may attend a house party or a night of concerts followed by “clubbing” that may end up in a sexual encounter.
What can emerge from this liaison is anything from a false accusation of “date rape” to fraudulent claims of “coercive” sexual activity – previously called “rape.”
Defending college based “prosecutions” consisting of various levels of accusations of sexual “coercion” is very different than the kind of criminal proceedings you would encounter in the criminal courtrooms across the state and the country.
What Does Title IX Actually Say?
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.”
—Title IX, a portion of the United States Education Amendments of 1972, Public Law No. 92318, 86 Stat. 235 (June 23, 1972), 20 U.S.C. §§ 1681-1688
Title IX prohibits all forms of sex discrimination in schools and also addresses gender-based violence
Campus sexual assaults are frequently not only charged under the relevant student conduct code they are charged under Title IX. Of course they may also be prosecuted as crimes depending on the strength of the case. But many weak some absurdly weak cases – not provable as crimes – ARE prosecuted on campus.
Criminal prosecutions are not addressed in this article (but see my website.
It is one thing to be charged with a crime. The criminal courts of Colorado place the highest burden of proof that exists in our country on the State of Colorado – proof beyond a reasonable doubt – on the organization bringing the charges – the District Attorney’s office. But at the college level – the impact of the prosecution may be just as severe on the young adult’s life but the “rules” are very different.
When your son (mostly men) has been “charged” under Title IX and or the Student Conduct Code his education, not only are his career prospects, his entire future is in jeopardy.
Often he is in another state and when the distance is significant, this only adds to your feelings of helplessness. Your fears increase because of the foreign nature of your son’s college disciplinary procedures.
Although admittedly expensive, finding local counsel to represent him may be the only way to attempt to turn the course of his life back on track. The failure to seek the help of a lawyer because the matter seems trivial – may be a mistake that ends with lifetime consequences – direct and collateral.
Your lawyer should have experience, not only in defending criminal cases, but also in Colorado college based prosecutions. There is a kind of “peace of mind” knowing you have an experienced Colorado criminal defense lawyer experienced in this area who is with your son at every meeting and hearing.
In the specific area of alleged sexual assault – you should select a lawyer who is experienced in not only sexual assault defense but also a lawyer who is experienced in Title IX procedures.
College students are sometimes inclined – out of embarrassment – or some notion of independence – to keep silent and not share the this kind of accusation with their family. They believe, naively of course, that their version of the case will be believed and all of this will work out.
This is a mistake that is often buried and when discovered – it is often too late to correct.
The thinking behind “zero tolerance school discipline” codes is to avoid bad publicity for the college or university. The strong message intended for the public is that it’s school has a “zero tolerance” for certain types of behaviors – among them sexual coercion.. notwithstanding the college student’s intent, the true facts and the circumstances of the incident. “Our school is safe for your daughters” they advertise. Of course that matters to the parents of young adult women often leaving home for the first time.
The possible loss of a perceived “troublemaker” – the college policy makers have figured out – is more than made up by the favorable selection of these schools by the large number of female students selecting the school on that basis among the other reasons one chooses a college and university.
The approach of colleges to allegations of sexual assault is changing to the disadvantage of the mostly young men accused – every year that passes.
Here are links to the relevant sections of the three major Colorado colleges, the University of Colorado (public), Colorado State University and the University of Denver’s Student Codes:
If convicted in a criminal case – the sentencing scheme is well known and understood. Sex offender registration, jail or prison time, sex offender treatment, fines, intensive forms of probation, and much much more.
Even if the District Attorney’s office declines to press charges, or if your lawyer defeats the criminal case – a college disciplinary board can:
• Expel or suspend the student from college
• Impose counseling and/or rehabilitative courses
• Place a permanent entry on his school record – reprimand or warning which may result in the refusal of admittance to post-graduate school, the denial of employment, or the denial or loss of professional licensure.
College administrators – most with no legal training whatsoever, have the power to ruin your son’s future without ever bringing a criminal case against you.
All large colleges and universities have the capacity to marshal extensive resources to investigate and discipline their students. A large college is not bound by the same laws and procedures that apply in criminal cases. This is doubly true of private colleges who are not subject and need not comply with basic principles of “due process” since these private schools are not government organizations and the proceeding does not involve “state action.”
Colleges have little or no interest in making certain the truth comes out of these proceedings. Their interest is to make certain their reputation remains intact. If schools are believed not to take allegations of sexual harassment or sexual assault, the Department of Education can cut some or even all of the federal funding to a school – to include federal student loans research grants.
Compare the university disciplinary procedures to the rights you have in a Colorado criminal courtroom:
There is no presumption of innocence.
There is no right to confront your accuser and cross examine that person.
The burden of proof on the college is by a preponderance of the evidence – 50% “plus a feather” – not beyond a reasonable doubt. (guilt here means the school believes her version slightly more than your sons).
The college does not have to inform you of the specific allegations – accusations against you.
There are no elected impartial judges.
There is no right to an unbiased jury of one’s peers.
There is no right to the aggressive representation by a lawyer.
There are no mandatory “discovery” procedures to make certain all parties have access to the same relevant information.
There are no rules of evidence for the admission of only reliable evidence. All forms of tainted evidence such as hearsay, bad character evidence, prior bad acts, and unsworn testimony is ALL admissible.
Notwithstanding these grave limitations on your son’s rights – the life-changing sanctions that result in these cases – many based on nothing more than “a feeling” by the decision makers (believing one person’s story only slightly more than the other) are often the same as a criminal conviction.
If the funds are there – carefully conducting a defense based investigation is critical. Carefully, in this context means NOT aggressively confronting the accuser and other witnesses involved – it means diplomatically approaching the victim and other witnesses, if any, and then documenting their sworn statements for use in the fast moving proceeding.
To assist in defending these cases – the student should immediately locate and provide every communication he can find to his lawyer; every email, every text message, every recorded conversation – literally every possible communication that may be relevant to the fighting the accusations against you. Every Snap Chat, Face Book Post, Tinder chat, or OK Cupid communication should be preserved NOW.
The investigator should talk to every person who is a witness or knows something about the event – both before and after the event.
What is common to all university disciplinary hearings is they are all different – and what is also true about these proceedings is they are complex and foreign to the uninitiated..
While the procedures in your student handbook may be as strange to you or your son as the tiny print in your auto insurance contract – your son is bound by the terms (also a contract) of that handbook when he agrees to accept an offer to attend his school.
On the other hand it should be quickly added that the college or university is ALSO bound by the procedures and “rights” in the disciplinary code – such as they are – in that same handbook.
School administrators are NOT qualified to properly investigate and prosecute sexual assault allegations. They lack the investigative ability, the basic impartiality, the professional legal training, and the legal education and experience to fairly handle sexual assault allegations. Even in the criminal justice system, sexual assault cases are among the most difficult case to investigate, to prove and to defend.
College employees consisting most often of administrator types are now serving as the police investigators, the prosecutors, the jury and the judge in campus sexual assault cases.
In a phrase – student prosecutions across this country are little more than “witch hunts” where the school seeks to expel the accused as soon as they can do so. Colleges want to purge “irritating or unconventional students” so they can publicize their “zero tolerance” policies to attract a much larger student body. The strategy makes sense. It is a zero sum game – expel one student – gain hundreds of new applicants.
Male students are presumed guilty the moment they are accused. When your son is accused of sexual assault, do not wait long before at least consulting with a lawyer.
Students on most college campuses are entitled to select an “advisor” to help them through the process. Most colleges permit that advisor to be an attorney but while these lawyers are allowed into the investigation and hearing room, and they are allowed to advise their clients – they cannot “represent” their clients in the case in the truest sense of that term.
There is no cross-examination of witnesses, questions are posed in the absence of any real form of disclosure of the alleged “victims” allegations. Under this Kafkaesque System the lawyer’s primary role must be to investigate the facts, marshal the physical evidence, locate the most favorable witnesses, and assist in presenting this information to the schools decision makers.
The lawyer can advise on the proper “tone” to take with the college or university, advise the student on how to answer certain questions and avoid others and how to present the case in the best possible light.
The lawyer can make certain that the school follows it’s own rules and procedures such as they are. Students have the right to sue the schools for failing to follow the protections mandated under Title IX.
Lawyers are unwelcome because they aggressively protect the interests of their clients. Their style is as experienced litigators, (this applies most to criminal defense attorneys), to be aggressive, direct and protective. This does not often sit well with college administrators.
The nature of criminal litigation is – the school wants everyone to go along to get along and to close the case as quickly as possible.
Colorado criminal law is designed to protect the rights of the accused to a fair and just trial, school disciplinary cases are designed to protect the alleged victim from confrontation and exposure – even if the allegations are inherently inconsistent or and even if they are obviously false.
Colorado criminal courtrooms protect the accused by the presumption of innocence, the burden of proof on the prosecution, the right not incriminate oneself, the right to try to suppress unfairly obtained evidence, and the right to call hostile witnesses to the stand to cross examine them on their version of the “truth.”
Colorado college and universities do not want a protracted investigation and defense. These schools want the case to proceed quickly to a quick result. Lawyers challenge the process at every step in an effort to make that process fair and just.
Lawyers who have experience in this field, such as H. Michael Steinberg, help their clients to navigate the waters of these proceedings. Lawyers with experience in this field understand the procedures and the “thinking” of the college and university regarding student discipline cases.
Having criminal defense skills also protect your son against potential or parallel criminal prosecutions, while having a plenary understanding that college and university disciplinary codes operate entirely outside the judicial system.
H. Michael Steinberg is at home in either the criminal defense system or the college/university disciplinary system.
It is clear today that colleges not only use high school disciplinary records in college admission decisions – graduate schools do the same.
Finally, as this article goes to press – this piece How ‘Consensual’ Sex Got A Freshman Kicked Out Of College And Started A Huge Debate is relevant for further reading.
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 30 plus years – H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado College Students – The Dangerous World Of “Consensual Sex” On College Campuses In The 21st Century Part II of II.