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Friday January 15th

Lawyers bring legal expertise, outside accountability to UNC Title IX hearings

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UNC spokesperson Jeni Cook said the University doesn’t keep data on how many students hire outside representation for sexual assault investigations, which have taken place outside of Honor Court since 2012. But since these cases go through the University judicial system, hiring an outside attorney is the only way students can have someone to represent them.

The Students and Administration Equality Act, passed in 2013, allows students in North Carolina to hire outside attorneys for University proceedings.

Criminal defense attorney Amos Tyndall said when students come to him for representation on honor court cases, he usually tells them outside representation is unnecessary.

Students can use Carolina Student Legal Services for civil cases such as car accidents and landlord issues, but not in cases against the university.

Fran Lewis Muse, director of Carolina Student Legal Services, said when the office can’t represent students, she tries to give guidance on how the processes work and what their rights are — if she’s allowed to.

“If a student walks in the door and we know that the accused or the victim is a UNC student, we just won’t even see them,” she said.

After the act was first passed, Kerry Sutton, defense attorney for UNC football player Allen Artis, said she has had cases where her client was the only party that could afford representation.

Now, she said, more lawyers and organizations provide funds for those who come forward with a sexual assault claim.

Muse said some lawyers are likely to take on pro bono cases.

“I think there are lawyers out there — especially, I’d say, in this county — that enjoy working with students, that might give a free consultation if they know the circumstances,” Muse said.

Sutton has been representing students in university cases since the 2006 Duke lacrosse case, which made national headlines and made her a common contact for students needing representation. It’s usually parents who reach out, she said, not students.

She also said being an attorney for these cases is tricky due to how different the Title IX process is from the criminal court process.

“Not every criminal defense attorney can say, ‘Oh yeah, I can handle a campus case,’ because they’re extremely different,” Sutton said. “It’s kind of like if you needed brain surgery and you said, ‘Oh well I’ll use my eye doctor because that’s kind of close to the brain.’”

Sutton and Tyndall both said university cases can be difficult because there’s no set standard like there is in a criminal court.

“Every single case is different, every student is different, every claim is different — UNC-Chapel Hill has different rules than UNC-Charlotte,” Sutton said.

Even cases within the same university can change frequently. Since 2011, when the Department of Education released the Dear Colleague letter that caused many schools to adjust their handling of sexual assault, UNC’s sexual assault policy has changed several times.

“Even the last (case) I did was a different procedure from the one I did, like, a year ago,” Tyndall said.

Tyndall said stipulations like the Department of Education-mandated “preponderance of evidence,” which holds the accused responsible if there is even 50.01 percent certainty, have made dealing with the Title IX process complicated.

Sutton said she doesn’t believe the people who set university rules for sexual assault investigations always respect the rights of the students involved.

“What I always look at is, would I want my kid to be part of this process, and the answer is absolutely not because it’s typically unfair,” she said.

Both Sutton and Tyndall said allowing outside attorneys to participate in university hearings ensures that the university is held accountable and gives each student a fair process. But even then, universities don’t have to set a precedent for how to determine outcomes and punishments for each case.

“You can call it a private process, or you can call it a secret process,” Tyndall said. “I have no idea what happens in a case that’s just like my guy’s case, and so the secretive part of it is a little frightening to a lot of people.”

Sutton said she’s had issues with schools trying to limit her role during the process. She said she could not talk — only whisper or pass notes — during Duke University hearings, and had been treated unfairly at N.C. State University hearings in the past.

“I had one investigator from N.C. State come in as an outside investigator who turned to me and said, ‘You are a houseplant. You may not say anything,’” Sutton said. “I think a set of rules that is like that is just disrespectful. I’m a professional, I spent years perfecting my craft — don’t talk to me like that. You’re making my poor client think that he hired a houseplant. What’s the point of that?”

While Sutton said she doesn’t think UNC has a perfect policy, she said she respected the University’s Title IX office. She said the office was usually communicative, thorough and fair to those who cooperate with the process.

“I think they do a pretty darned good job,” Sutton said. “I would never say the same thing about the Duke Title IX office.”

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