Colleges and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights.
Students’ rights in connection with their schools are limited by the schools’ policies, which are set out in the student handbook and other places, but students also have rights granted by the constitution. At times, what the school requires and what the constitution allows may be in conflict. For example, a school policy may require a student to provide identification to campus police and to cooperate with campus police if stopped on campus. However, campus police are frequently also auxiliary town or city police, and when they are investigating criminal activity, and students retain their constitutional right to decline to speak to police. Balancing the desire to avoid disciplinary consequences from the school, and avoiding criminal prosecution can be difficult, and students should always assert their right to speak to a lawyer before answering any questions from the police. In the end you may end up cooperating with the police, but you want to do so with the help of a criminal defense attorney to weighing the advantages and disadvantages of that course of action.
In our experience, the most likely area where students may encounter police and have to make difficult decisions about whether and how to cooperate with a police investigation is when the police are investigating allegations of sexual misconduct. Since 2011 the federal government has focused attention on sexual harassment and sexual assault issues and has promulgated several iterations of guidance and regulations governing the process by which schools are required to conduct Title IX investigations. While the current iteration of these regulations provide a number of procedural protections for students accused of sexual misconduct, they do not include any protections for accused students who may be facing the far more serious consequences of a criminal investigation. Allegations of sexual assaults always carry the potential risk of a criminal case, in addition to any Title IX investigation. And that in turn requires making decisions about whether and to what extent the student should participate in the Title IX process.
The first contact a student often gets in a Title IX case is an email, from a dean or from a Title IX administrator, asking the student to make an appointment to meet. But there are cases where the first contact is from the police – either campus police or local town or city police. If the police make the first contact, the chances are high that a criminal investigation is underway, but even if the first contact is from a school administrator, students need to be cautious about what they say before learning what the allegations are.
Whenever a student is contacted, and by whatever means (email, phone call or in-person contact), if there is any hint that the allegations involve sexual assault, or if the student suspects that the allegations may include sexual assault, the first thing the student should do, before talking to anyone at the school or to the police, is contact their parents and an attorney who has criminal defense experience. If the police in fact arrest the student, they should invoke their right to remain silent and ask for an attorney (after an arrest the police must advise the student of their right to an attorney). Attorneys who do only Title IX cases and have no criminal defense experience may not think as carefully about the ramifications of a Title IX investigation for criminal prosecution, which is why it is important for students accused of potentially criminal activity to find a lawyer who can advise them on both the school and criminal processes.
In a criminal case, the defendant has the right not to speak. That right is protected by the Fifth Amendment. Even before charges are brought, if police arrest someone, they must give them warnings, called Miranda warnings, before speaking with them, advising them of their right not to speak, their right to consult with an attorney, and that if they do speak with the police, what they say can be used against them in a criminal prosecution. None of those protections are part of the Title IX process, and no one in that process will give the student any warnings about the consequences of speaking to police or to an investigator during a Title IX interview. But anything the student says in any school interview can, and is likely to be, used against them in a criminal prosecution, if there is one.
That is why it is critical, at the very beginning of any Title IX investigation, before the student says anything about the allegations, to know what the allegations are and to have the advice of an attorney about whether the conduct alleged might violate criminal law, and therefore whether to answer any questions or provide any statements to a Title IX investigator or police. Once a student makes a statement, they will not be able to easily go back and correct anything they have gotten wrong, and conflicting statements will be used to call into question the student’s credibility.
If you have been accused of a crime or are involved in a Title IX proceeding, contact our criminal defense and Title IX lawyers at (617) 742-6020.