By Bryan Boender
What you need to know when accused of sexual misconduct at school
You had a great weekend. You met someone new. Now it’s Monday, and you just received a Student Conduct Notice. Your immediate response is required. Call a lawyer first.
How you respond to a student conduct notice could impact more than just your college career because you are being investigated for sexual misconduct. The University can expel you. The school will share your information with law enforcement agencies and criminal prosecutors. You could be be charged with a crime. Whatever you said to the school can later be used against you in court. You could become a convicted felon. You could lose the rights to vote, to sit on a jury, or to own or possess a firearm. You can be denied future employment and housing. You could go to prison. You may have to register as a sex offender.
Your parents sent you to college to get a degree, not a criminal record. Call a lawyer first.
What is sexual misconduct? Sexual misconduct is a violation of your school’s student conduct code relating to sexual harassment or sexual violence. Each school has a slightly different version of a sexual misconduct policy. The Student Conduct Code at your school provides the applicable definitions and describes the offenses that amount to sexual misconduct. In many circumstances, the same conduct that violates a school’s conduct code also amounts to a sex crime under Oregon law. Violation of a the sexual misconduct code leads to a negative notation on the student transcript, suspension from school, or even a permanent expulsion.
Why is the school involved in off-campus conduct? The police are not the only authorities off campus. It is not a defense to a student conduct code violation that the behavior occurred off campus because college and university students in Oregon may be held responsible for their misconduct both on- and off-campus. For example, the UO, OSU, and PSU conduct codes all provide for jurisdiction over their students’ off-campus behavior.
What can I expect from the student conduct process? Federal law requires colleges and universities to prevent and respond to reports of sexual violence. Title IX of the Educational Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded educational programs and activities. The U.S. Department of Education has provided universities specific guidance for handling sexual harassment and sexual violence. On April 4, 2011, the Office for Civil Rights (OCR) in the U.S. Department of Education issued a Dear Colleague Letter on student-on-student sexual harassment and sexual violence (“DCL”). Available at http://www.ed.gov/ocr/letters/colleague-201104.html. Under that federal mandate, colleges and universities have eliminated many procedural due process rights that protect the rights of accused students.
What rights do I have in the student conduct process? An administrator will not typically advise you of your constitutional rights. You may be told that the conduct process is not a criminal process. You may even be told that federal law protects your student information. Do not be lulled into a false confession. The administration shares information with law enforcement. Campus administrators have eliminated most of the procedural safeguards that should be provided to you. You will not be permitted to cross-examine witnesses. You may be denied the right to face your accuser. You will not have subpoena power to compel the production of evidence or the attendance of witnesses in your favor. You will have access to some records and information, which may include police reports and witness statements. However, these reports may be heavily redacted and extremely difficult to read. You will have some opportunity to respond to that material. At a hearing, you may be permitted to submit some questions to the accuser or witnesses. Your questions will be less effective because an administrator may choose to ignore or rephrase your questions to make them less effective.
The major universities in Oregon provide access to their student conduct codes online. See e.g. University of Oregon Student Conduct Code at https://policies.uoregon.edu/vol-3-administration-student-affairs/ch-1-conduct/student-conduct-code, Oregon State University Student Conduct Code at http://leadership.oregonstate.edu/sites/leadership.oregonstate.edu/files/policies/student_conduct_2-25-15_576-15.pdf, and Portland State University Student Conduct Code at https://www.pdx.edu/dos/psu-student-code-conduct#Jurisdiction.
What can I do if my school denies me my rights? You may have remedies in state or federal court when your school ignores its own procedures or deprives you of your constitutional rights. Your advisor or lawyer should be able to explain those rights to you. However, an advisor provided to you by your college or university may be contractually prohibited from representing you in court to review the record of your case or from bringing a lawsuit against your school for violating your constitutional rights. You should consult with a private attorney with experience in civil rights, criminal defense, and student conduct defense in order to fully understand your options.
Why do I need a lawyer to handle a university sexual misconduct allegation? Your college or university has accused you of misconduct that may also amount to a sex crime. Anything you say to the college or university can and will be used against you in a criminal prosecution. You are facing a potential prison sentence and sex offender registration. You need a lawyer.
About Bryan Boender. Bryan Boender is a criminal defense lawyer in Eugene, Oregon. He practices student conduct defense. Mr. Boender has represented University of Oregon and Oregon State University Students accused of Title IX offenses, sexual misconduct, sexual harassment, and sexual violence. Bryan Boender also has experience representing fraternities and students accused from misdemeanor offenses and major felonies, including Measure 11 offenses.
By: Bryan Boender, Attorney
Boender & Kerns Attorneys
1188 Olive Street
Eugene, OR 97401