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CAUTION FOR STUDENTS ACCUSED OF SEXUAL HARASSMENT ON MSU CAMPUS

Michigan State University has taken a very aggressive stance on students accused of sexual harassment. Sexual harassment includes stalking or criminal sexual conduct (sexual assault). The university has been under increased scrutiny by the federal government as a result of numerous complaints from alleged victims who feel that perpetrators are either not dealt with or that they are dealt with in a casual and unfair manner. Increased pressure has included threats by the Feds to withhold funding from various programs at MSU. As result of the threats, a number of new personnel were hired by the university, many of them attorneys, to both modify the sexual harassment process as well as to implement the process.

Students should be cautioned, that although they are typically afforded counsel through ASMSU at no expense, ASMSU representation does not extend to individuals accused of sexual harassment. There are student volunteers, however, who are not attorneys and frequently not even law students, who sometimes assist the accused and act as their advocates. The former and current procedure used to process persons accused of sexual harassment is flawed with a procedure that violates ordinary concepts of due process, and the application of the procedure, typically results in many violations as well. Students are usually called in by the investigative arm to come in for a one-on-one interview. Although attorneys are allowed to be present, most students who are accused attend this investigative session alone or sometimes only in the company of a student advocate. This is perhaps the most critical process in the entire investigative phase. Students who do not consult with an attorney prior to the meeting are at a disadvantage, not only because the accusations could also lead to criminal charges, but also because they could be subjected to leading questions, and the investigator/interrogator may restrict the questions to certain areas, and thus preclude the accused from shedding light on the overall circumstances which may cause a reasonable person to conclude that sexual contact, if any, was consensual.

The impetus of most of these cases is that sexual contact occurred when the alleged victim, typically a female, was intoxicated. Intoxication of the alleged perpetrator is generally not considered pertinent. Although there are occasional claims that the perpetrator engaged in sexual activities with an unconscious victim, the lack of capacity to engage in sexual contact has been found by university investigators where the alleged victim engaged in conversations with others both before and immediately after the sexual activity; was awake during the entire episode and did not say no; engaged in sexual contact with somebody else shortly thereafter; or they engaged in kissing and sexual fondling leading to sexual intercourse without either physically or verbally indicating that the alleged perpetrator should stop. The typical result of these proceedings is a finding by the university investigator that the sexual contact was not consensual. The accused student is thereafter subjected to administrative sanctions by Student Services, typically permanent removal from the university. These students are also at risk for serious criminal charges.

Recommendations:

Students who are accused of sexual misconduct, particularly after they are notified by the investigative team to come in for an interview, should alert their parents, and secure an attorney to represent them during the investigative phase. An attorney can assist the accused in conducting their own investigation and reporting results to the university investigator at the time of the investigative meeting. Attorneys can also caution the accused relative to whether any question should be answered that could be potential incriminating and/or lead to criminal charges. Oftentimes, attorneys can assist the accused in arranging for a lie detector (polygraph) which though not admissible in court, may be useful and potentially even dispositive during administrative hearings in a "He said versus She said" situation. Attorneys can also arrange for investigators to conduct interviews of any other persons who have had contact with the alleged victim to determine whether any inconsistent statements have been made which would shed light on the credibility of the accuser. This author has had success in this process when a defense team was allowed to become involved in the early stages. Often, if the client has appeared for the investigative phase alone, it is difficult to undo the damage except by way of launching legal challenges relating to any procedural irregularities or violation of Constitutional rights that might be involved. This latter course is complex and expensive.

George Zulakis, Esq.

BAIRD & ZULAKIS, P.C.

Attorneys at Law

4127 Okemos Rd

Okemos, MI 48864

(517) 349-5011

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