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Title IX & Student Conduct Code Blog

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Can You Be Jailed for a Title IX Violation?

Title IX is a short legislative provision with a long reach. Specifically, Title IX of the Education Amendments of 1972 states that no person in an educational program receiving federal assistance should be subjected to discrimination on the basis of sex. The definition of discrimination has expanded through regulations, judicial opinions, and agency guidance so that a number of different types of conduct can be considered a Title IX violation.

What are these types of conduct? And can you be jailed for them? The answer is not a simple yes or no but depends on a number of factors.

Title IX Proceedings are Separate from Criminal Proceedings

The process of bringing allegations against someone regarding a violation of Title IX and the resulting procedures of filing a formal complaint, investigating the issues, and judging whether someone should be held responsible for a violation are completely separate—and completely different from a criminal proceeding. The offenses are defined differently. The parties who investigate are different. The parties making decisions are different. The process is different; the standards are different; the potential penalties are different—there are so many differences, in fact, that the approach to defense needs to be quite different.

A situation involving the same people and the same incidents can give rise to both a Title IX proceeding on a school campus and a criminal proceeding resolved through a court of law. The facts that come to light may be the same in each case, but the outcomes can be very different, and the process of reaching a result certainly will be.

Title IX is Not a Criminal Law

Technically, you cannot go to jail for violating Title IX. This federal law is not a criminal law, so a violation is not a crime. However, the situation that is held to constitute a Title IX violation can also constitute a violation of criminal law, usually at the state level.

Therefore, you can be jailed for conduct that has been determined to violate Title IX, but that will not be the reason for your prison sentence. You would be incarcerated because the actions that violated Title IX also violated criminal law.

What Actions Violate Title IX?

Title IX receives a lot of media attention involving the equal opportunities offered to male and female student athletes.  Individuals are not accused of Title IX violations in this context, it is the institutions themselves who can be charged with violating gender equity rules in athletics. When individuals are accused of a Title IX violation, it usually involves conduct such as:

Violent conduct generally violates criminal law as well as Title IX. Therefore, if you are accused of violating Title IX by sexually assaulting a fellow student or another violent offense, the conduct, if it is proven to have occurred, could also provide grounds for police to charge you with a criminal offense.

Conduct that violates Title IX because it creates a hostile environment and makes individuals uncomfortable, while it may be treated as actionable sexual harassment, is less likely to constitute a crime. You are not likely to face jail time for making sexually suggestive jokes, even though you could be sanctioned under Title IX. You could, however, face other penalties and be subject to a civil lawsuit for Title IX violations that are not criminal offenses.  

Title IX Proceedings Can Lead to Criminal Proceedings

Schools are required by Title IX to conduct investigations and conduct hearings or other proceedings to determine responsibility in a timely manner. Many colleges and universities, for instance, will work to complete the process within 60 days if possible.

Criminal proceedings don’t work within the same timeframe. Some states have no statute of limitations for felony offenses such as rape. When there is a statute of limitations, it will generally be at least a year or two, even for a misdemeanor. Police can start investigating later and at a more deliberate pace than the pace of a school Title IX proceeding. They can use evidence uncovered in the Title IX case. Prosecutors can build a solid case before filing charges. It is quite possible for a Title IX investigation in one year to lead to criminal charges in the next year. So it is important to keep the big picture in mind when building a defense strategy.

Different Standards

Just because a student was found responsible for sexual violence or another serious Title IX offense does not necessarily mean they will be found guilty of a crime for that same conduct. Even if the definition of the offense is exactly the same—and it frequently is not—the burden of proof is vastly different in a criminal court of law than in a Title IX school disciplinary tribunal.

To be found responsible for a Title IX violation, a respondent does not need to be found guilty beyond a reasonable doubt like in a criminal case. Instead, the presentation of evidence does not need to be as convincing. Depending on the standard in effect at the time or the standard elected by the school, a student must be found to be more likely than not to have committed the offense or there must be “clear and convincing evidence” of a violation. These standards fall far short of beyond a reasonable doubt, the standard used to determine guilt in a criminal case.

A campus investigator may have raised evidence that makes it seem likely that the respondent committed an action that violated Title IX but there may not be enough evidence to convince a judge or jury of guilt beyond a reasonable doubt.

Vigorous Defense is Important at All Stages if You’ve Been Accused of Title IX Sexual Violence

If you are facing allegations of sexual violence, stalking, or intimate partner violence, your conduct could subject you to criminal penalties as well as Title IX consequences, and you need to protect yourself with a solid defense strategy as soon as possible. Title IX proceedings are likely to begin sooner and move at a much faster pace, so your first step should be to consult an attorney with experience defending against serious Title IX violations.

The team at Nesenoff & Miltenberg, LLP is dedicated to assisting students in connection with Title IX claims while at the same time navigating potential criminal charges, and our team offers a depth of experience in student defense on campus and in court that is tough to match. For a confidential consultation to discuss your situation, contact us now.