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I am a Title IX Respondent – Can I Cross Complain?

Litigation By Binnall Law Group - 2022/10/24 at 12:09pm

By Lindsay McKasson         

          Depending on the facts and circumstances of the situation, you may be entitled, and indeed it may require good strategy, to cross complain against the complainant in a Title IX proceeding. For instance, if you were under the influence at the time of the alleged encounter, it may be the case that you were unable to consent to a sexual encounter. Another example is if you said “no” or “I do not want to” and the complainant continued to try to engage in sexual activity with you despite your clear lack of consent. These are mere examples of when you may want to cross complain. You should hire a Title IX attorney to help identify whether the facts of your situation give rise to a situation in which you should cross complain.

            It should be noted that complaining against a Title IX complainant carries the risk of being considered “retaliation” by the college or university. Retaliation, in relevant part, is defined by the 2020 Regulations as:

No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation…Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination required to be adopted under § 106.8(c).

34 C.F.R. §106.71. Schools must adhere to this rule but may cast a wide net as to what constitutes a violation. There are ways to mitigate the risk of retaliation, but it should be done so with the guidance and assistance of experienced Title IX attorneys.

        Cross complaining may provide some benefits. The first and most obvious benefit is that if the facts demonstrate that you were as likely to have been assaulted as the complainant, you deserve to have your rights enforced by the Title IX process. The second benefit is that it may help facilitate an informal resolution – a mutual “walk-away” which may ultimately be in the best interest of both parties. Third, it may present a strategic advantage to you in any future litigation; if the school is faced with two complaints about the same incident, one from a male and one from a female, a finding for one or the other may be a fact that can be used to support a Title IX claim in court.

            You have rights as a student, including as a respondent, in a Title IX proceeding. Having an experienced Title IX attorney who can identify whether you have the right facts in which you should cross complain and then who can walk you through the steps in order to mitigate the risks of such action as being retaliation is important in order to secure your rights.