We are excited to announce distinguished Title IX attorney Felice Duffy has joined the national Title IX powerhouse law firm of Nesenoff & Miltenberg LLP.

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Distinction Between Title IX Investigation Disciplinary Process and Criminal Procedures

A survivor of sexual assault can pursue either a campus administrative complaint process or a criminal process through the local law enforcement, or both. In order for a survivor to determine if they should proceed with one process or the other, or both, it is important to review the specifics of a case with a Title IX attorney.

A general review of some of the key differences includes the following:

Goals: A criminal investigation is intended to determine if an individual violated a criminal law. The goal is to protect and preserve public safety and to punish individuals who break the law. The goals in a college disciplinary process are education, safety and a safe campus environment.

Governing Law: State statutes/penal codes, rules of criminal procedure as federal criminal law are applied in the criminal justice system. This varies from the disciplinary process which applies Title IX, The Clery Act[1] as amended by the Violence Against Women Act as well as rules that govern specific colleges or universities.

Investigators: A criminal investigation is conducted by police or law enforcement. In a college disciplinary process, the investigation is conducted by individuals who are employed or retained by the college or university.

Parties: The prosecutor and the defendant(accused) are the parties in a criminal trial. The parties in the disciplinary process vary by school. Some institutions consider the school and the respondent (accused) to be the parties while sometimes the reporting individual (survivor) and the respondent(accused) constitute the parties.

• Privacy: A criminal trial is open to the public. Disciplinary proceedings are kept as private as possible although some information is shared. The Office for Civil Rights provides that a “school should take requests for confidentiality seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment for all students, including the student who reported the sexual violence.”

• Standard of Evidence: A standard known as “beyond a reasonable doubt”[2] is applied to criminal matters. A lesser standard known as “preponderance of the evidence[3] applies to a violation of a disciplinary rule meaning that the violation was “more likely than not.” Because the standards for pursuing and completing criminal investigations are different from those used for Title IX investigations, the termination of a criminal investigation without an arrest or conviction does not affect the school’s Title IX obligations.

Comparison of a Title IX vs Criminal Proceedings

Title IX Proceedings Criminal Trial
Standard of Proof VariesPreponderance of Evidence refers to a certainty of guilt that is a feather weight over 50%

Clear and Convincing Evidence is between “Preponderance of Evidence” and “Beyond a Reasonable Doubt”

Beyond a Reasonable Doubt“A reasonable doubt exists when a factfinder cannot say with moral certainty that a person is guilty or a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as such doubt as would cause a reasonable person to hesitate before acting in a matter of importance.” — Websters
Applicable laws / Deadlines
  • School-specific rules & deadlines
  • These rules may vary from semester to semester.
  • State & Federal laws
  • Deadlines determined at state level
Judgment Makers Administrators

Usually a panel of school employees; may sometimes include students

Appeals In many cases, both parties may appeal a ruling Only the accused can appeal a guilty ruling. No “double-jeopardy” allowed.
Entitled to a lawyer No, some schools may forbid outside counsel (except in cases of sexual assault) Yes, and if you can’t afford one, one will be provided.
Investigators School employees Law enforcement
Rules of Evidence
  • No strict guidelines. Sometimes hearsay and rumors can be used as evidence.
  • Witnesses are not placed under oath. Little to no consequences for lying.
  • Evidence may not be shared with both parties”
  • Very strict rules about what is admissible and what is not
  • Witnesses are placed under oath and can be held accountable for perjury.
  • Evidence is available to both parties”
Consequences & Punishments.

What’s at stake?

  • Sanctions, including expulsion or suspension.
  • Loss of credits.
  • Damaged Reputation.
  • Lost tuition.
  • Criminal penalties such as prison, felony, or sex offender registration.
Ability to cross-examine? Cross-examination is limited or even forbidden altogether. Both parties have the right to cross examine witnesses and evidence

Contact an Experienced National Title IX Attorney

An individual may be prosecuted under a state criminal justice system and disciplined through a college or university disciplinary process. Even if the criminal justice authorities choose not to prosecute, the accused may be subject to university disciplinary action. Disciplinary procedures are considered distinct and independent of any and all criminal procedures and may precede, occur simultaneously, or follow court action. Once a school knows about a sexual assault incident, it must promptly investigate it – within 60 days generally- and, although it may be temporarily suspended to allow for the criminal investigation, it should not be suspended for long- generally about ten days.

The intricacies of both the criminal justice system and the disciplinary process make it necessary to speak to the highly knowledge lawyers at Nesenoff & Miltenberg, LLP based on their extensive experience with Title IX actions. Nesenoff & Miltenberg, LLP attorneys are prepared to discuss your situation today by calling 212-736-4500.


[1] https://clerycenter.org/summary-jeanne-clery-act

[2] https://www.law.cornell.edu/constitution-conan/amendment-14

[3] https://www.law.cornell.edu/wex/preponderance_of_the_evidence

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