Differences Between Criminal and Campus Proceedings

Saland Law, led by criminal defense lawyer and former prosecutor Jeremy Saland, proudly and effectively advises both respondents and complainants in Title IX hearings. Although headquartered in New York City, we represent clients in Title IX matters nationwide. Understanding the differences between criminal proceedings and campus Title IX proceedings is essential for anyone facing allegations or supporting someone involved in allegations of sexual assault, dating violence, or other forms of sexual misconduct whether directly or indirectly implicating affirmative consent.

Criminal Proceedings vs. Title IX Proceedings: Basic Differences

Jurisdiction and Purpose

Criminal proceedings are conducted by government actors (police, federal agents and both state and federal prosecutors) and seek to enforce state or federal laws. Penalties can include incarceration, probation, fines, and in cases of sexual assault, possible sex-offender registration. In contrast, Title IX proceedings are administrative processes instituted by educational institutions. The focus is on campus safety, enforcing internal codes of conduct, and protecting the educational environment. Consequences are academic, such as suspension, expulsion, loss of housing, or transcript notation. However, it is not atypical for school-based proceedings to share a parallel track with a criminal one or in a family court where an order of protection or restraining order is simultaneously litigated.

Standard of Proof

In a criminal court, the prosecution must prove guilt beyond a reasonable doubt; the highest legal standard. In Title IX processes, most schools, following Department of Education regulations, apply the preponderance of the evidence standard, meaning it is more likely than not that a violation occurred. Some institutions may use the more stringent clear and convincing standard, but the criminal court threshold is never used in campus cases. Regardless of the legal hurdle for guilt, aka, “responsible”, or innocence, aka, “not responsible”, the degree of due process and the training and experience of adjudicators is frighteningly substandard in comparison to that found in a courtroom.

Definition of Consent and Offenses

Campus definitions often incorporate language like “affirmative, conscious, voluntary, and ongoing agreement” necessary for lawful sexual contact. This is often referred to as “affirmative consent” or “yes means yes.” Silence or absence of objection does not qualify as consent. Crimes such as dating violence, sexual assault, and stalking are part of both federal guidance under Title IX and criminal statutes.

Criminal statutes may define sexual assault or battery with varying criteria. Some states require demonstration of physical force or incapacitation. Other states have adopted definitions of consent that mirror affirmative consent standards. In general, campuses adopt broader, more inclusive definitions of misconduct than what criminal statutes typically require.

Procedural Protections

The differences in procedural protections are significant. Criminal defendants have the right to counsel, the right to remain silent, strict rules of evidence, the right to cross-examine witnesses, and a public trial by jury. Campus Title IX processes are governed by institutional rules and federal law that often limit or eliminate many of these rights. Advisors may not be allowed to speak directly, evidence rules are far more relaxed and inconsistently applied, and proceedings are not public. In some institutions, the findings of a single adjudicator may ultimately determine the outcome. In others, a hearing panel may be used. Appeals are typically allowed for both complainants and respondents, though standards vary. Regardless, do not ever conflate a real court of law and the rights you may take for granted to exist in a school Title IX proceeding. This is one of the many reasons why it is critical to have an advisor who knows the law inside and outside a college campus, and, similarly, inside and outside a court of law.

Evidence Gathering

Criminal investigations involve police, subpoenas, forensic evidence, and sworn testimony. Title IX investigations rely on interviews, institutional records, emails, and other forms of documentation. Schools may integrate information from criminal investigations, though their own process may proceed even if criminal charges are not filed or are dropped. This independence can lead to dramatically different outcomes in each process.

Why These Differences Matter

Outcome Disparity

It is entirely possible for a student to be found not guilty in criminal court and still be found responsible in a Title IX proceeding. This is due to the lower standard of proof in campus cases and the broader definitions of consent and misconduct. A finding of responsibility can result in suspension, expulsion, or transcript notations that may follow a student for years.

Keep in mind, what you say or evidence you provide to your college or university can be subpoenaed by prosecutors as part of their case in a criminal court.

Speed and Timeline

Title IX processes often move faster than criminal proceedings. Colleges may resolve cases in weeks or months, while criminal matters may take much longer. This can pressure accused individuals into rushed decisions about statements or resolution options before the criminal process even begins. Conversely, complainants may receive support and safety measures from the school more quickly than from law enforcement.

Due Process and Fairness

Because campus procedures are not bound by constitutional protections applicable in criminal court, the risk of procedural imbalance is real. Limitations on cross-examination, lack of lawyer-client privilege for advisors, and the use of hearsay all raise due process concerns. Students must be aware that what they say in campus proceedings may be used against them in a criminal case later.

Key Title IX Concepts: Definitions and Standards

Affirmative Consent and Sexual Contact

Title IX policies define affirmative consent as an ongoing, voluntary, and informed “yes” to sexual activity, whether verbal or through clear actions. Consent must be maintained throughout the encounter and can be revoked at any time. Silence or lack of resistance does not imply consent. The term “sexual contact” covers any intimate touching, whether over or under clothing, and regardless of whether penetration occurs.

Sexual Assault and Dating Violence

Under Title IX, sexual assault includes any non-consensual sexual act, including unwanted touching, groping, or rape. Dating violence refers to abusive behavior in an intimate relationship, which may include physical violence, coercion, threats, and controlling behavior. These terms may be broader than those used in criminal codes, but they carry significant consequences in the educational setting.

Incapacitation

Consent cannot be given by someone who is incapacitated due to drugs, alcohol, sleep, or unconsciousness. The standard used to determine incapacitation on campus may be different from the legal definition used in criminal court. For example, a student who voluntarily consumed alcohol but appeared coherent might be deemed capable of consent in a criminal proceeding but not in a campus Title IX case.

Overlapping and Parallel Proceedings

Independent but Interconnected

Title IX investigations and criminal prosecutions are separate, but they can influence one another. A university can proceed with a Title IX case regardless of the status of a criminal investigation. The processes may run in parallel, with campus investigators using information from police reports, and law enforcement reviewing statements made in campus hearings.

Strategic Rights Management

Anyone involved in both processes must carefully manage what is said and when. There is no guaranteed right to remain silent in Title IX hearings, and refusing to participate can result in a one-sided record. However, statements made during campus proceedings can be subpoenaed by law enforcement or prosecutors. For respondents, balancing participation in one process while protecting against self-incrimination in the other is critical.

Role of Counsel and Advisors

Criminal Defense Attorneys

Criminal defendants are entitled to an attorney, and if they cannot afford one, the state must provide one. Defense counsel can challenge evidence, cross-examine witnesses, and ensure constitutional rights are protected throughout the process.

Title IX Advisors

Under current federal regulations, both the complainant and respondent are allowed to have an advisor of their choice throughout the Title IX process. This can be an attorney, but schools are not required to provide one. That said, an accused, aka, respondent, and even a complainant, would be beyond foolish not to retain an attorney-advisor with real and practical experience. 

Regardless of your advisor, some institutions limit what he or she can do. Legal representation is not constitutionally guaranteed in campus hearings, but experienced counsel can be – and far more often than not will be – vital in protecting the client’s interests.

Criminal vs. Title IX: Procedural Comparison

Criminal cases and Title IX proceedings differ across multiple dimensions. Criminal defendants enjoy strong constitutional rights and protections, including the presumption of innocence and the right to confront accusers. Title IX respondents do not have these same guarantees, and while no school would ever admit to it, respondents are often deemed responsible instead of not responsible from the outset of a case. The campus process is quicker, more flexible, and less formal; but that also means it can be more unpredictable.

A student may be cleared of criminal wrongdoing and still face expulsion from school. On the other hand, a student might be acquitted in a Title IX hearing, only to later be arrested if new evidence emerges. Each system can have lasting impacts on a person’s academic future, employment, and reputation.

Implications for Respondents and Complainants

For respondents, a Title IX finding of responsibility can, or, better stated, will derail academic and professional aspirations. Even if no criminal conviction occurs, a record of disciplinary action can result in denial of graduate school, employment problems, or permanent transcript marks. If criminal charges are pending or possible, every step in the campus process must be approached with caution.

For complainants, the campus process may offer a safer or more supportive route than criminal prosecution. Title IX complaints can lead to meaningful interim measures and protective steps. But they cannot result in a criminal conviction or incarceration for the accused. Complainants often pursue both avenues at once, but doing so requires consistency, preparation, and guidance.

Why Saland Law Is the Right Team

Jeremy Saland brings a unique background as a criminal defense lawyer and former Manhattan prosecutor with decades of experience, giving him firsthand insight into both criminal justice procedures and administrative processes like Title IX. This experience allows Saland Law to help clients navigate both systems simultaneously, balancing legal exposure with academic risks. Whether you are a respondent facing allegations of sexual contact without affirmative consent, or a complainant seeking to ensure your report of dating violence is handled with care and seriousness, Saland Law is prepared to guide you.

We understand the complexities of campus proceedings and the need to think several steps ahead. From crafting statements to preparing for cross-examination, we help clients present their cases clearly, credibly, and in ways that protect their long-term interests. We are also deeply familiar with the variations in Title IX procedures across institutions nationwide and can adapt our strategy to each school’s policies.

Nationwide Reach, NYC Roots

While based in New York City, Saland Law regularly handles student conduct matters across the United States. We assist students at large universities, private colleges, military academies, and specialized institutions. Our national approach ensures that no matter where you attend school (or where the incident occurred) you’ll have representation that understands how to operate effectively in both criminal and academic systems.

Take the First Step 

Criminal and campus proceedings operate under different rules, with different goals, timelines, and outcomes. One seeks to impose legal punishment. The other seeks to preserve educational access and safety. Yet both can result in life-changing consequences. Understanding these distinctions, and preparing accordingly, is critical for anyone facing or initiating a Title IX complaint.

Saland Law is here to help. With deep knowledge of criminal law, campus procedures, and Title IX regulations, we provide strategic, compassionate, and effective representation to both respondents and complainants. Whether you are under investigation or preparing to report misconduct, contact us today to ensure your rights are protected and your future remains on track.