COLLEGES AND UNIVERSITIES CONTINUE TO PLAY TOXICOLOGISTS IN TITLE IX CASES WITH REAL LIFE CONSEQUENCES
Whether a student is charged with sexual misconduct in Rhode Island or elsewhere, determining culpability in campus Title IX sexual assault cases often turns on the levels of each party’s intoxication. Many cases of alleged sexual assault on and off-campus are he said, she said scenarios with alcohol and/or drugs involved. Some schools allow for toxicologists’ opinions at the expense of the students, but expert opinions are very costly, as much as two or three thousand dollars and most students are priced out of that option.
As a result, the parties end up facing a hearing panel of three to seven panelists comprised of a mix of students, professors and administrators. The panelists are then given the responsibility of determining which party was more intoxicated based on hearsay, admissions, and other non-scientific evidence. Then they are tasked with guessing whether a party was too impaired by alcohol or drugs to give informed consent to sexual acts and who “initiated” the sexual acts. It’s a guessing game, nothing more, and it’s dangerous. Real peoples’ lives are impacted and the consequences can be just as devastating as a criminal conviction. For example, I had a case not too long ago where two impartial witnesses testified that the accuser and the accused both stumbled out of a bar together holding each other up. The witnesses were not friends and bore no allegiance to either party. Both parties claimed to remember engaging in sexual intercourse, but also claimed to have “blacked out” during the act.
I took the case on appeal after the accused male student went through the process with a “student adviser” (never a good idea to rely on a student adviser alone), was expelled, and labelled a “rapist” notwithstanding ample credible circumstantial evidence of his extremely high level of intoxication and mutual initiation of sexual intercourse. I was not surprised by the original Title IX investigation report, which evidenced no analysis had been conducted based on available data including number of drinks consumed, type of alcohol, brand of alcohol to establish alcohol content, height and weight of the parties, food consumed by the parties, etc.
Also not surprising, the rationale given by the hearing panel chair was four sentences long—in a nutshell, the male respondent was found “guilty” of rape (yes that is the term used at that school, not “responsible” or “in violation,” which are more typical in the allegedly non-adversarial proceedings) because the panel found he was less intoxicated than she was and therefore was labeled a rapist.
At my direction, we hired a toxicologist to provide an opinion based on actual data. The toxicologist was able to determine that my client was incapacitated during sexual intercourse. Other evidence determined that he did not initiate the sexual contact. The analysis was compelling, based on evidence and data from impartial witnesses and sources. The appeal was successful. If this student’s family was unable to afford a toxicologist, his expulsion would have held and he would have received a permanent notation on his transcript, thus eliminating most, if not all, competitive employment opportunities, all because the school decided a panel with a weekend of Title IX training was up for the task of ultimately deciding the parties’ futures.
On the flip side, I had a case where my client, a female student, accused a male student of rape and after my independent investigation, it was clear the male student was a sexual predator. My client was very intoxicated, noticeably so, and the accused was not. He claimed he was too impaired to consent as well, and the school’s Title IX investigator came to same the conclusion. The investigator’s conclusion was not based on science, rather it was based on hearsay testimony that he was slurring his words at one point in the night. My client was certain the accused was “buzzed” at most. A toxicologist supported that conclusion based on an analysis of among other data, the height and weight of the accused, number and nature of drinks admittedly consumed over a specific period of time, as well as food intake. Somehow the investor thought three beers and one mixed drink over the course of five to six hours was evidence of incapacity by a preponderance of the evidence. Turns out, the investigator was wrong. The accused had an approximate blood alcohol level just above the legal limit.
While they tend to be the most common, obviously not all cases involve two incapacitated parties, and not all accusers are female. I have represented male, female and non-binary complainants and respondents across the country. All face an uphill battle because of their school’s choice to turn students and staff into toxicologists. Schools do not have to rely solely on the Department of Education to make rules. Findings of guilt for crimes as serious as rape based on the intoxication level of each party must be based on some sort of data driven analysis by a toxicologist. If schools can build multi-million dollar football stadiums, they can afford an impartial analysis to ensure survivors and the accused receive a fair process.
Remember: although it is extremely important to hire an experienced Student Defense Attorney as early in Campus Disciplinary Proceedings as possible (as soon as a notice of charges is received, if not before), it is never too late. Whether a student has already been sanctioned and is in the appeals stage or even after an appeal has been denied, a lawyer with extensive experience representing and defending college students can offer invaluable help.
Jonathan Cook at New England Student Defense has represented over 150 students in Rhode Island and at Colleges and Universities nationwide from Yale University and Georgetown University to the University of Houston and Tulane University.
These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.