Using Digital Evidence in a Title IX Case
| | Title IX
When someone files a formal Title IX complaint against a student or member of the faculty or staff on a college campus, that usually triggers a formal investigation and adjudication process. If the allegations turn out to be serious, such as when a student is accused of sexual assault, a great deal of attention may be focused on the case.
Investigators and attorneys for both the complainant and the respondent will be collecting and analyzing various types of evidence. Increasingly, that evidence is stored or even created in a digital format.
If you have been accused of violating someone’s Title IX rights, you should be seeking evidence to support your defense, and you also need to be careful to avoid creating evidence that can be used in the case against you. Is digital evidence helpful? Or is it likely to make it more difficult to convince people that you are not responsible for the wrongdoing alleged against you?
The answer depends on what the evidence reveals and how it is used. Whether you are defending yourself in a Title IX proceeding or you are filing a complaint to seek justice, working with a Title IX attorney can help you ensure that you use digital evidence to your advantage to the greatest extent possible while minimizing the potential harm caused by digital evidence introduced by others.
Why Evidence Matters in a Title IX Case
In a Title IX case, the complainant typically alleges that the respondent took an action that violated their rights and caused them harm, while the respondent denies the allegations. Often, when a case involves sexual misconduct, one party says they were engaging in activity based on mutual consent while the other party denies giving consent. It can be difficult to determine where the truth lies.
Evidence is information presented in the hearing to either show why a respondent should be held responsible for a Title IX violation or why actions that occurred did not constitute a violation of Title IX rules. Types of evidence include testimony from witnesses, photos, footage from video cameras, and written communications. By piecing together the evidence presented, the factfinder in a Title IX proceeding determines what happened and what the outcome of the case should be.
If the factfinder determines that the evidence shows the violation occurred, the respondent can face penalties that may put an end to their career dreams and result in a loss of reputation that haunts them far into the future.
Understanding the Different Forms of Digital Evidence
What the complainant and respondent said to or about each other can be introduced as evidence in various forms, many of which are digital. This includes:
- Text messages
- Social media posts
- Direct messages
- Emails
Additionally, digital evidence can include photos, videos, and recordings stored in digital format. Even when something posted online or saved in a digital format is deleted or altered, there is likely to be a copy of the original version accessible somewhere. Digital media is intangible, yet remarkably resilient.
Protecting Yourself with Digital Evidence
When you’re involved in a Title IX case and you start to think about all the things you’ve said or done that could potentially be used against you, it can be a frightening prospect. Comments taken out of context can give an impression you never meant to make. The realization causes many people in this situation to panic and make mistakes that put them in an even worse position.
Don’t Try to Defend Yourself
Once word spreads that you’ve been accused of sexual harassment or another Title IX violation, the natural instinct may be to explain what happened and defend yourself. While that is a good goal, and it may seem like a reasonable thing to do, the words you put out in your defense can be twisted and used as evidence against you.
While it is okay to send emails and texts to your attorney discussing the case, it is a good idea not to communicate electronically about anything connected with the case with anyone else. Even if you think a message is private, it could be accessed or forwarded and eventually used against you.
Don’t Delete Anything
Many people start trying to delete messages or shut down accounts so they don’t have to worry about what may be found. However, deleting posts or information in your account can make it look like you’re trying to destroy evidence or that you have something to hide. Remember that even if you delete one version, someone else may have a screenshot or another version of that piece of evidence. It is better to be prepared with an explanation for potentially damaging evidence than to be caught trying to destroy it.
Don’t Try to Explain to the Complainant
Another natural tendency that respondents need to avoid is the desire to reach out to the complainant to try to explain themselves and resolve issues privately. Once a formal complaint has been filed, the matter will no longer be private, and it’s essential to accept this fact. Moreover, attempts to communicate directly with the complainant are likely to violate rules and get you in trouble. You can attempt to communicate through your attorney or a neutral third party if there are no restraining or protective prohibitions in place and your attorney thinks that is a good idea. But direct communications will only put you in a deeper hole.
Watch What You Post
Social media has become a way to share with friends. We share our joys, our worries, our frustrations—just about anything. But it’s not a good idea to share anything while you’re in the middle of a Title IX investigation or adjudication process. The risk of something being misinterpreted is simply too great. Anything you post will not help your case—it can only be used in a negative way.
Title IX Cases are Really Hard—But We Can Help
If you’re being investigated for a potential Title IX violation, you can feel like the whole world has turned against you. Instead of looking for sympathy from friends online, talk to an experienced Title IX attorney who can help you with concrete strategies to protect your rights and your future.
At Nesenoff & Miltenberg, we help complainants and respondents make their best case in campus proceedings, and we know how to appeal effectively on campus or in court to ensure that justice is served. We invite you to schedule a confidential consultation to learn how we can put our experience to work for you. Just call us at 212-736-4500 or contact us online to get started.