I have been running fast today. I am scheduled to be a part of a panel discussion at the Colorado Criminal Defense Bar CLE on Title IX Defense at the National Institute of Trial Advocacy in Boulder. The program’s date changed and I have some conflicts, such as a morning of mediation on a car crash case and meeting a potential new client who indicated he has the money.
Title IX defense has become a huge legal field across the country in the last several years. The consequences include expulsion with a permanent and ubiquitous record of “Responsible for Sexual Misconduct” on a person’s transcript. And this is if you are not prosecuted and put in prison for rape.
My first case was about 3 years ago. Despite winning that case, we are still trying to change his transcript from Fail and Incomplete to Withdrawn - he was accused 2 weeks prior to finals and was not allowed to sit for them. We are hopeful that CSU will allow Retroactive Withdrawal, rather than a lawsuit.
Over the years, I have worked on many Title IX cases, a few domestic violence charges (still noted as “Responsible for Sexual Misconduct” per university definitions), a probation revocation, sharing video of consensual sexual contact and numerous allegations of what is commonly called rape. My job on the panel was to share my experiences so that others could help their clients.
Upon getting my first case, I needed to research the issues. I knew how to investigate and try a criminal case where there are many due process protections for the accused, such as a jury trial, a judge that is not also police and prosecutor, the presumption of innocence, the burden on the prosecution of proof beyond a reasonable doubt, a trial where evidence is presented in open court with cross examination, knowledge of the factual allegations that support the charges and other reasonable, accepted and normal parts of a trial that are largely summed up by the school yard response to a claim of “prove it.”
Normally in criminal cases, we say prove it. We challenge the factual allegations. But where there are no due process protections like the above, "prove it" is not enough.
In fact, the accused is not presumed innocent and if s/he does not present evidence, s/he will lose. The investigator/prosecutor/judge is one person. That person believes trauma informed sexual assault theory. This essentially means that if reported, then guilty. In truth, the accused must prove themselves innocent.
I read articles on Andrew T. Miltenberg of Nesenoff & Miltenberg, LLP in New York nmllplaw.com. Mr. Miltenberg was essentially the alarm bell ringing on these issues. Not only was he pioneering the fight in schools, he was bringing cases to the Federal Courts and showing the lack of due process. I read his pleadings. This helped me present a fair due process argument at CSU, in addition to a thorough factual attack. Although we did not win initially, we won on university appeal.
Each time I started a new case, I learned more and fought the due process failures better. Each time, I learned how to better investigate in a school setting. Each time I advanced my process of how we responded, conversed with the investigators and prepared my clients. Specifically on factual issues, my Trial Lawyers College training helped me find facts and motivations that supported innocence.
Back to the Title IX panel discussion. Arriving shortly after the panel started, due to a successful car crash negotiation running long. I share what I have learned so others can help their clients without a Federal Lawsuit, or maybe to set it up better. I was a little dismayed to hear that most people did not feel they could win at the school level. I have successful results in almost all of my cases. This could be due to the random assignment of cases, or it could be due to my attitude, investigation and process. I was not trying to scold, I just wanted to encourage.
Guess who else is on the panel? Andrew T. Miltenberg, the pioneer. I am honored to participate with him. Andrew and I have a case together right now. We both got on the case after the university portion was complete. Andrew was preparing the Title IX Federal suit. I was defending the felony criminal sexual assault with force case filed in the Colorado state courts in Boulder. Last summer, I was able to show the prosecutor (now an Adams District Court judge) the trouble with the case. She dismissed. Andrew filed the Title IX suit not long after. We are in the midst of that litigation now.
Despite working together, we had not met face to face. It was great to learn from him and meet him.
I love teaching, which is really sharing things that I have learned from others or from experience. I have taught CLEs on DUI, Identification Evidence, Jury Selection, Restitution and other issues. I share my knowledge informally with my colleagues and they often do the same. I am quite proud to say I am now Faculty at the Trial Lawyers College (www.triallawyerscollege.com). I leave Thursday to teach at @TLCWY methods of jury selection in Alaska for Trial Lawyers College. I have written a few published articles. The best thing about teaching or writing is that it exposes what you do not know, so that you can get better. I am a better lawyer for teaching.
By the way, afterwards, I met the new client and he hired me.
Almost a year later, he gets called into the equal opportunity and title ix office at University of Denver (DU). The year prior he had gone to a fraternity formal in the mountains with a girl that he was not interested in romantically, just friends. He did not even really want to go. She convinced him to take her so she could hang out with her girl-friends that were going, and to hang out with guys in the frat. So they go.
Once there, she acts like a typical young person at their first mountain frat party. Shots, beer, weed, cocaine, lap dancing, hot tubs, nearly naked, and lacking clear memory. In the morning, she feels terrible, both from all the intoxicants and some from guilt of what she must have done. She asked him what happened. You see, he was not happy about something. He was trying to avoid her. He told her that he fell asleep in the bed after midnight while she was watching Netflix. He said he woke up to her on top of him, grinding on him, she had taken his underwear off and put his penis inside her.
He did not know what to do, he did not show her he was fully away, she was still intoxicated. He moved a little, she got off of him and went to the bathroom. He rolled over and went back to sleep. He woke hoping it was a bad dream. He worried about STD. He did not like the friendship violation. He knew few would believe him or even care.
Being naïve and young, he told her what she did and that he was upset with her. They spent much of the day separately.
She had no memory. If he would have denied any sexual contact, there would never be enough evidence for him to be charged or even accused. But, he told the truth. She could not handle it and started telling a tale that allowed her to be a victim, in part because of her friend saying she was too drunk to make this decision. Wait, she has sex with a sleeping man and it’s the sleeping man’s fault. The friend did not get the full story, made assumptions and the story grows into him raping her.
This is what was said to the frat. The frat president was advised by national and counsel to send it to the Title IX office. The frat did. Equal Opportunity and Title IX at University of Denver did nothing for much of a year. It appears the girl did not cooperate or maybe Title IX was negligent in investigating. The young man’s reputation was soiled by rumor throughout his school. He had no ability to defend. It actually caused him post traumatic stress (PTSD) because he was the victim and was being blamed as the cause. Fortunately, he sought psychological help rather than hiding with drugs or worse.
Almost a year later, she goes to Equal Opportunity and Title IX at DU. She complains that the frat did nothing. She does not realize that it was actually Title IX that did nothing. She tells the tale that has been developing and growing over time with everyone saying she is a victim. In our culture, women are victims and men are perpetrators. It cannot be the other way.
This week, hard work and persistence paid off. The Boulder District Attorney filed to dismiss the felony sexual assault case against my client and the Court signed the order. Dismissals on sex cases are rare. It helps if you are righteously confident in your ability to try your case to a jury. I am.
My client was vilified in the press when the charges were filed. The information released by the prosecution was woefully incomplete and suggested that he fled the country because he was guilty. The truth is much different. My client returned home only after his prior attorney relayed word that no charges would be filed. He did not run. He always planned to return to the US and did so, getting arrested as he entered the country.
Despite the arrest warrant affidavit suggesting that the complainant immediately left the dorm and sought help, the truth was that she and her friend chose to stay with my client and his friends. Although the complainant's friend reported to police she immediately learned of the assault, they chose to stay. Both reported they just wanted to get into the sober friend’s car and drive to a safe place, they chose to stay. Videos show that they were free to leave, they did not. Videos show they walked into the parking area within feet of their car. They chose to stay, smoke marijuana and drink alcohol with a large group of students. They chose to continue to spending time with my client and his friends, even attempting to find and return to the boys’ room later that night after separation. At the end of the night, the complainant and her friend rode up and down an elevator, at the dorm, alone, for a significant amount of time, laughing and using social media, rather than leaving. When police asked why, they reported they could not find the ground floor to leave.
While these facts do not completely reveal what happened, they do beg the question of why did they lie, why did they act this way, why do they continue to lie to the police? One answer is that there was no crime.
There is more to this case. A future post may address that.
The complainant will not face charges nor even be identified. She suffers no consequences. Many people will believe she is a victim and he is a perpetrator. There is no database of false accusers. If she falsely accuses someone in the future, there will be no way to learn of this case and use it to assess her credibility. If you want to avoid someone like this, you cannot run a background check and learn what she did. This is true of all cases like this, even the ones that do not get filed.
Compare that to my client. It will take several weeks to seal this case from public view. The defense must file a motion, pay fees and wait. In the meantime, my client’s record will suggest he is a rapist, preventing him from getting jobs or renting apartments or living a normal life. A background check is cheap. After sealing, the case will remain in the police and DA files indefinitely. If granted, sealing will not affect any news articles or other internet content. Therefore, this false claim will be findable on the internet forever. We only hope that those that find the initial article, will also find the one showing it was dismissed. Even so, some will think he got away with it. This is in part due to the recent publicity of a statistic that only 2-8% of sexual assault allegations are false. That just is not true.
To say only 8% of sexual assault claims are false suggests 92% are true. The study does not support that. If you review the literature of False Allegations of Sexual Assault, the type that victim advocates, prosecutors, detectives, prosecution experts and title IX investigators are trained on, this case would not be called a false allegation. (See https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf and https://atixa.org/wordpress/wp-content/uploads/2012/01/Lisak-False-Allegations-16-VAW-1318-2010.pdf). The misleading statistic is based on a contrived definition of false allegation. In the studies, a false allegation must be proven false by police investigation. Of the 136 cases reviewed, almost 45% percent did not proceed and could not be determined whether they were false or not. Another 14% did not have sufficient information for a determination. Only 35% proceeded, and some of those were probably false, just not proven. The study’s authors suggest only 2-8% of sexual assault claims are false where of the remaining 92%, only a third were arguably true reports of sexual assault. If you have to rig the statistics to make your point, you are probably lying. Lies, damn lies and statistics. If you do not like the results, change the definitions.
As with prior exonerations where the case was reported in the press, I requested a follow up article (with my client’s approval). I respect the need for a free press and the public’s right to get this information. Certain facts help to sell papers – fear is a powerful motivator. At the same time, I see the damage that this can do to an innocent person. I give great credit to Mitchell Byars and the Daily Camera for telling the rest of the story.
On June 11, 2018, we received official notice exonerating my client from the university office of institutional equity at University of Colorado - Colorado Springs (UCCS). She was on her way out of the country for several weeks to represent her country in athletics when she got the good news. She can enjoy the trip knowing that she will not lose her scholarship and will be able to graduate without “responsible for sexual misconduct” on her transcript.
A few months ago, I was called by parents concerned with how UCCS was handling an allegation of sexual assault. They wanted someone to immediately jump on the case and protect their child. These cases need immediate work due to strict timing issues.
Here, my client got very intoxicated after exams. She was black out drunk and her friends brought her to bed, gave her aspirin, Gatorade and a bucket to vomit into. She was not able to take care of herself and she relied on others. One of the others was her girlfriend. She was sober. She is bigger and stronger than my client. And she has full control of her mental and physical abilities. She also took on the role of caretaker, in a position of trust. They kiss and fool around and both sleep in the bed until morning.
Client realizes from her severe intoxication that she must deal with some prior trauma. Alcohol is not the answer. It is harming her growth and athletic ability. She decides to get into therapy, quit drinking and end a destructive, co-dependent and enabling relationship. This happens a week or so later.
The girlfriend is not happy about the end of this relationship. She is also dating someone else. This person hates client because she worries client will take her girlfriend back. This person has struck client violently, causing a concussion, during team practice.
A month or two later, the girlfriend decides to report a sexual assault to UCCS. The report is a forced penetration claim – this equates to rape with force, a severe felony under state law if the case gets into the criminal courts.
So, a sober person goes into the room of a severely drunk person and claims she is forced to penetrate the drunk one she is caretaking. Here, it is two women. Can you imagine a sober male student reporting that a blackout drunk girl forced him to penetrate her while he took care of her? I suspect most would assume he is trying to cover for his bad behavior. The chance that an investigation would focus on the guilt of the drunk woman is zero.
It may seem this was an easy case.
But, in Title IX cases, there is no presumption of innocence. There is no burden of production on the accuser. Once a claim is made, if you do not defend yourself, you lose. The burden of proof is by a preponderance (50.1%). Prior false accusations are not relevant, prior bad behavior by the complainant is not relevant and other valid evidence will not be considered. There is no right to cross examination of any witness, including the accuser. There is often no hearing, meaning that you do not get to see the testimony or face them. The school often requires a statement as to what happened prior to providing any specific information as to what is claimed – here we were informed of the name, the charge and the approximate date only despite policies requiring specific information. There is no subpoena power to force a witness to give a statement or provide other evidence. Although you can have a lawyer, the lawyer has limited or no ability to speak for client or communicate in the case. Appeal rights are limited and only to specific issues. AND, all evidence in the Title IX case will be turned over to police and prosecution if requested.
The Title IX investigators have no prior police or criminal investigation experience. They are trained by Title IX groups that believe all accusations are true and victims never lie. The school goal is to avoid scrutiny by the Federal government that could result in withdrawing all Federal funds, including loan guarantees. If a school cannot get student loan guarantees, they will lose half or more of their students and tuition.
A better system would require clear and convincing evidence and presume a person innocent while allowing for attorney cross examination after investigation by retired police detectives. Due process requires this as well as other protections.
Fortunately, here we prevailed.
On other cases, we have won at appeal (Colorado State University – CSU) or found a way to limit the collateral consequences (University of Colorado – Boulder – CU) or made a deal with University legal counsel after appeal but prior to filing a Federal law suit. There are times when it is best to accept school consequences to keep the complainant satisfied so a criminal case is never filed. The worst result is a criminal filing, potentially resulting in Felony Sexual Assault charges with a potential for a lifetime of probation, parole or prison and sex offender registry.
My client was dating a girl with significant emotional issues which likely included Borderline Personality Disorder. One day she flipped out when he moved her dog off the bed and their relationship ended. There was never any violence nor threats. He was confused by her actions and she sent mixed messages over the next 2 months. Eventually, she complained to the school that he would not leave her alone. The mixed messages were to blame.
What did he do wrong? He would text her and say positive things, like I hope you have a good day or good luck on your exam. She would sometimes respond. The messages were not constant nor at strange hours nor rude/mean/threatening. He was being friendly. She was not clear with what she wanted. Until after about 2 months, one message that said to stop contacting her. After that, he send 2-3 more texts over about a week. He was confused.
CU found him responsible for stalking under the sexual misconduct section of the Title IX code. There was no claim of unwanted sexual contact, it is called sexual misconduct based on a broad definition. The sanction was a 2 year suspension when he was 3 months from graduation.
My investigation found that she had made similar claims against at least 2 other people while at CU. One was an RA and one was a former roommate. Both told us stories about he lies and manipulations. We were able to prove some lies. We also found that she was violent and threatening to people in sorority, so much so that she was removed from her sorority suite and removed from her executive position in the sorority.
Despite the evidence of her lies and misdeeds, we lost. A big reason was that he gave an interview to CU prior to talking to a lawyer and without understanding the severity of the situation he was in. Cautionary tale indeed.
Worse, he was not allowed to be on campus nor finish school. He was one semester from graduating. He was supposed to start graduation school at CU the following Fall. In addition, since he was suspended, his student visa was revoked.
Fortunately, he had a separate visa allowing him to stay in the US. He was able to transfer to another school to graduate. This school also accepted him into their graduate program. We tried to win this one, but did not. We considered a Federal lawsuit, but my client was simply happy to move on at his new school.
You cannot win them all. Lessons were learned here. We found lots of evidence that supported a different finding and would have supported a lawsuit. I am happy that my client’s life was not derailed. I wish we could have had more success. I fear for the next person this girl harms. CU is not protecting its students by ignoring her serious problems.
Today we received notice that our appeal of a Title IX hearing was successful. This ends a terrible chapter in my client’s life, although he will still need to apply for Retroactive Withdrawal to clean up his transcript and likely need therapy to help him deal with the stress and anger associated with being falsely accused.
They met the first week of school and made out. He liked her and wanted more, she played the field and ended up in a relationship with her dorm neighbor. Later that semester, the neighbor broke up with her. She wanted him back and decided to try to make him jealous. So, she contacted my client and invited him over. She gave her roommate the signal for hooking up and needing privacy. They had sex. He told me that it was strange because she was making really loud positive sex noises – no attempt to keep it down, but instead really loud. These were not pain, but instead sounds of ecstacy. He enjoyed it. Little did he know the noise was designed for her ex to hear.
About 2 weeks later, he gets the notice of investigation for sexual misconduct. The day after that, police show up to his dorm room and remove him from campus. He cannot attend class nor take final exams. It is 2 weeks from the end of the semester. All his work is lost. He cannot even withdraw because the deadline is past. He will get all Fs.
Investigation shows the ex broke up with her and she was hurt. She wanted him back. She tried to make him jealous. He just told her that he would appreciate it if she was not so loud when she had sex. She then said she was raped. He felt sorry for her. He comforted her. They started dating again. She got what she wanted. She stopped responding to the Title IX investigators.
Despite her refusal to cooperate any more, the Title IX investigation continued. Despite our interviews and evidence supporting consent and her motives, the Title IX office found my client responsible and expelled him. We appealed. After 5 months of work, my client was found NOT RESPONSIBLE for sexual misconduct. He lost his Fall tuition, his transcript has all Fs and he is damaged from the experience. She is dating her ex. He will never return to this school that he was so excited to go to. His life has changed forever.
It is not fair, but he is not saddled with the scarlet letter of Responsible for Sexual Misconduct on a college transcript that can be found by every employer, college and graduate school. We are in the process of applying for retroactive withdrawal so that his Fs turn into Ws. If this happens, he will be able to go to a good school somewhere else.