Title IX cases can be challenging to defend. They are, almost without exception, he said/she said cases that take place entirely behind closed doors. Usually, the two students involved have been drinking, and sometimes their memories of what happened when they were alone in a room can be a little fuzzy.
That is why hard evidence—text messages, emails, photos, social media posts, and other things that don’t have a fallible memory—is incredibly important in these cases. It’s also why parents should beg, bribe, and even threaten their college students to never use Snapchat.
As many people probably know, Snapchat is a social media and messaging app that is designed to be evanescent. That is, when you text someone or send them a photo, the message will automatically delete itself after it is read, unless the recipient takes steps to screenshot it. Most people don’t screenshot messages, however, because the sender then receives a notification that they have done so. Although there’s nothing technically wrong with that, I have been reliably informed by many college students that screenshots are often viewed as a violation of the unwritten rules of Snapchat.
In the Title IX context, you can see how this is significant. Oftentimes, before people get together, they text (or “Snap,” in the parlance of the app) back and forth. Maybe they’re talking about the fact that they like each other; maybe they’re flirting, maybe they’re arranging where to meet, and so on and so forth.
Both the content and coherence of those communications can be crucial evidence if you later need to defend yourself in a Title IX case. If the parties have been flirting with each other, or even openly saying that they want to have sex, that can constitute crucial evidence for determining whether later happened between them was consensual. The same goes for texts after a sexual encounter—if they’re upbeat and friendly, that’s generally a good sign for the respondent.
Coherence also matters. If someone’s messages are nonsensical and full of typos, a factfinder might later find that weighs in favor of incapacitation. Conversely, if the messages are grammatically perfect and free of typos, it may be hard for the sender to later argue that they were too drunk to consent to sex.
If you are using iMessage, or an average text messaging app to communicate, this isn’t a problem. As long as you don’t delete them, you can always find them later and submit them to a Title IX investigator.
But if you use Snapchat, you’re out of luck. I cannot count the number of times I have had cases where my client has insisted to me that what they talked about on Snapchat would be strong evidence of consent—only to realize, of course, that the messages were gone forever. While you can certainly tell the Title IX office that the messages existed, good luck having them take your word for it.
So, if you are a parent and you’re reading this, try to convince your kids to get rid of Snapchat. If you’re a student yourself, think about what could happen to you down the road if you’re ever charged with a Title IX violation, and delete it yourself (even if it means you have to listen to your parents, which I know from experience can be its own type of pain).
Or, if I can’t persuade you to delete it, at least don’t use it to send messages to anyone you may have a romantic interest in. Switch to something that you can preserve, and never delete those messages. And I do mean never—our firm has defended several students whose accusers waited three years or more to bring their allegations forward. You never know when you might need to go back and prove something from a long time ago.
In short, mamas, don’t let your babies grow up to use Snapchat. They may one day thank you for it.
October 9, 2019