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Title IX Burden of Proof in the Wake of the 2011 “Dear Colleague Letter”

Title IX By Harvey Binnall PLLC - 2019/12/20 at 09:57pm

If you or a loved one has been accused of Title IX sexual misconduct, then this could lead to an investigation that could lead to significant negative ramifications — not only could there be academic penalties that include expulsion, but you could be forever-gained with the label of a sex offender in your community (despite your innocence) due to the loose standards and procedures typical of a Title IX dispute.

For the most part, Title IX investigations did not lead to particularly egregious outcomes until 2011, when the Obama Administration released the “Dear Colleague Letter,” which served as new guidance with respect to how schools were expected to investigate and prosecute Title IX allegations.  Specifically, the “Dear Colleague Letter” lowered the burden of proof required to find the accused student guilty of sexual misconduct.  This guidance document ultimately made it even easier for schools to prove that the accused student engaged in the sexual misconduct at-issue.  The dynamics of a Title IX dispute are therefore deeply unfavorable for the accused.

Let’s take a closer look.

Title IX Burden of Proof

Under Title IX, a student may be found guilty of having engaged in sexual misconduct if they subjected the victim to unwelcome sexual contact or advances.

Though many people assumed that Title IX prosecutions operate with the same “beyond a reasonable doubt” standard used in criminal courts, the actual burden of proof standard used in a Title IX case (since 2011) is then “preponderance of the evidence” standard.  The preponderance of the evidence standard is significantly less strict than the beyond a reasonable doubt standard.

In order for the Title IX tribunal to find that the accused is guilty, they need only prove that it’s more likely than not that the accused engaged in sexual misconduct — this has often been represented in numbers as a 51 percent likelihood.  By comparison, the beyond a reasonable doubt standard (used in criminal litigation) requires that the prosecution establish at least a 99 percent likelihood of guilt.

Contact Harvey & Binnall, PLLC to Consult a Title IX Attorney

Here at Harvey & Binnall, PLLC, our attorneys have decades of experience working with clients in a range of high-stakes disputes, from white collar criminal prosecutions to Title IX sexual misconduct investigations.  We understand the difficult social and psychological burdens that accompany such allegations, and how challenging it can be for the accused and their family to navigate the murky procedural world that is a defining trait of a Title IX dispute.

Unlike many of our competitors, we engage closely with our clients at an early stage, gaining critical insight into the case at-issue and into the facts so that we can identify strategic anchors through which to position our client advantageously.  These “dynamic” defense sensibilities are not optional in the Title IX context — they are necessary for effective advocacy.

Ready to speak to an experienced Title IX attorney at our firm?  Call us at 703-888-1943 or complete an online intake form to schedule a consultation.