New York Criminal Lawyer Blog
As a Title IX attorney routinely representing clients accused of dating violence or some form of harassment or sexual misconduct at a college or university, I sometimes find it incredibly frustrating to deal with the general lack of due process provided to students, especially the accused. Compounding matters, as an advisor to these students, I have witnessed time and time again the lack of practical and actual experience those in charge of investigating criminal-type offenses have despite their ability to upend the academic lives and futures of so many young people. Sadly, even with the flimsiest of evidence, the power bestowed upon these administrators, investigators, and fact-finders by way of Title IX creates a lethal combination that can define and destroy a student well beyond the four walls of his or her institution of higher education. With that in mind, on the heels of a recent exoneration of a student falsely accused of sexual misconduct and dating violence at a different university, Saland Law is once again pleased to share another victory after a successfully appealing a college’s initial determination that our client violated a no contact order by way of third-party.
Though Title IX rules prevent me from sharing the facts and allegations, generally speaking, a party in a college investigation maintains the ability to pursue his or her case in a Criminal Court, Family Court, or both, assuming the allegations and evidence warrants the same. Again, without discussing the particular school case, Title IX does not somehow trump or override a party’s rights in a separate court. Instead, among other relevant statutes, the state’s criminal procedure law and Family Court Act control respectively. As such, if for, example, a party files a Family Court petition for an Order of in New York, and does so pro se, without an attorney, the law allows the attorney for the respondent, aka, a defendant, to communicate with the other party in their capacity as their own attorney. Though there are certain ethical and professional rules that always apply, assuming the attorney for the receiving party, again, called a respondent in a Family Court Article 8 Order of Protection proceeding, conducts himself or herself within the parameters of the law, he or she can communicate with the pro se petitioner as he would an attorney. Therefore, if an attorney sought service of the petition containing the allegations from the pro se litigant, discussed the Family Offense case, served motions, or even attempted to work through to a disposition should either party want to do so, a college or university could not preclude or prevent an attorney from doing so because the subject matter is similar, and a collegiate no-contact order is in place. In other words, Title IX does not bestow some magical rights upon administrators at a college to strip away either litigants’ rights and, in the realm of an accused respondent, defend him or herself in court.
With the above in mind, it would be wrong for a college to find that defendant or accused violated his or her prohibition against third party contact with his or her accuser in a Title IX proceeding because his or her advisor reached out to his or her accuser in his or her capacity as a pro se litigant in the distinct and separate Family Court case (dang, that is a lot of “his or her[s]”!). Simply, a college or university has no authority over a judge, no right to dictate strategy, and no ability to control the conversation between a Title IX advisor-Family Court attorney for one party and a Title IX accuser-Family Court pro se litigant petitioner in a case under the umbrella of the New York State Courts. Assuming conduct of the advisor-attorney adhere to all ethical, professional, and legal regulations, very simply, and to put it nicely, a college or university has zero business sticking their proverbial nose in and attempting to control a court proceeding.
Ultimately, without addressing the facts, allegations, nor evidence of our client’s situation, nor his or her appeal, the rule of law won the day. Though our client unfortunately and unnecessarily needed to challenge a finding that should never have – unjustly – found a home upon his or her shoulders, our client’s well-deserved exoneration upon appeal reaffirmed, at least for now, his or her faith that schools, where a full understanding of the meaning and import of words such as “due process”, “justice” and the “rule of law” is sometime lost, can be held to and live up to those standards.
Founded by former Manhattan prosecutor Jeremy Saland, Saland Law is a law firm representing students as complainants and defendants in Title IX and Student Misconduct proceedings, as victims and defendants in criminal investigations and arrests, and as petitioners and respondents in New York Family Court Article 8 Order of Protection proceedings.
To learn more about the Title IX process and investigations involving Student Codes of Conduct, follow the highlighted links.