Heads I Win, Tails You Lose.

Heads I win, tails you lose.

Our firm has represented more than 100 students at more than 100 colleges and universities around the country. And one of the hardest lessons that we’ve had to learn is that, too many times, when it comes to Title IX violations, even when our clients win, they lose.

Let me explain what I mean. When someone is accused of sexual assault on a college campus, it will end in one of two ways – a finding that the person was responsible or not responsible. When people think about that, they often think of it like a criminal trial – you’re either found guilty or not guilty. But it’s not quite the same.

People tend to put a fair amount of faith in criminal trials. If a jury finds you not guilty, your record is wiped clean, and you’re supposed to be treated as if they never did anything wrong. Many state laws give acquitted defendants certain rights—for example—to have their cases sealed and even to seek reimbursement from the state after they’re acquitted. As a country, we do a reasonably good job of taking it seriously when a person is found not guilty of a crime.

Not so in the Title IX world.

In the Title IX world, here’s how people often react if they find out that you were accused of sexual misconduct:

If you’re found responsible, that means that you did it and that you are a rapist. And if you’re found not responsible, that just means the school messed up your case. You still did it, and you’re still a rapist. Once you’ve been accused of rape—in the minds of too many people—it’s impossible for you to be exonerated.

It’s true that you won’t have a record if you’re found not responsible. But that doesn’t keep people from finding out. Future employers, or graduate school admissions officers, can ask you if you were ever even investigated—not just found responsible—for a student disciplinary violation. You’ll have to disclose your Title IX case, and if you do, too many of those people will only care that you were accused of rape, even if you were found not responsible.

If you were falsely accused and then found not responsible, you might wonder whether it’s worth going public to talk about what happened to you. You could try to sit down for an interview with the New York Times, or the Washington Post, or the Wall Street Journal, and walk a journalist through just how flimsy the case against you was and how unfairly you were treated. But as justified—and as cathartic—as that might feel, it’s almost always the wrong call. If you do that, people are usually still going to assume that you did it, and that the only reason you weren’t found responsible is that the school just messed something up.

And this has a serious effect on how people think about these cases. There have been many news articles about accusers who lost their cases and who launched vocal, public protests over how their case was handled at the school. They are consistently portrayed by the media as honest victims rightly protesting an injustice. I don’t think I’ve ever read a story in which a journalist says they saw the investigation report in a case where someone was found not responsible and concluded that, actually, maybe the school got it right after all.

That means it is often essentially cost-free for accusers to go public about their cases, even if they lose. To be sure, there may be other reasons for them not to go public. We also represent victims in Title IX cases, and we’ve had to talk with those clients about why going public may or may not be the right call. But there’s always at least a meaningful conversation to be had with victims and their families about the benefits of going public, no matter what happens with their Title IX case.

But it’s a very different conversation if you’re a falsely accused rapist—because if that’s what you are, then in our experience, the personal costs to you are never worth going public, even if you won. If you’re a falsely accused rapist, most people don’t hear the first two words before “rapist.”

For criminal defense lawyers, that’s infuriating. But it’s a problem for everyone who cares about justice, about sexual assault on college campuses, and about how Title IX cases play out in practice at schools across the country. There is such a wild asymmetry of information in how Title IX cases enter the public imagination. A school is never going to disclose the evidence that was produced in the case or a written decision explaining why they found you not responsible. You’ll read stories about accusers telling their versions of how they were wronged by their schools. But because falsely accused students have no incentive to come forward and tell their own stories, the coverage is inevitably one-sided. This skews the perception of these cases in the popular imagination, and it leads to great injustices, both on campuses and even in the legal system, as states pass more and more laws that privilege the rights of the accusers over the rights of the accused.

It’s a heads I win, tails you lose mentality. And it’s one of the saddest and most regrettable things about our current Title IX system.

June 17, 2019