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.