Due Process: Title IX vs. Criminal Prosecution

This article is not legal advice, but is intended to be an informative article describing the basic concept of “due process” and the difference between the Title IX and criminal processes related to sexual misconduct. Sieben and Cotter, PLLC takes no position as to any recent allegations in the news related to this topic.

The following is presented in a four-part series: Part I: What is “Due Process”; Part II: Due Process In Criminal Sexual Conduct Prosecutions; Part III: Due Process In A Title IX Sexual Misconduct Investigation; and Part IV: Comparison of the Title IX and Criminal Prosecution Processes. Part I: What is “Due Process” can be found HERE. Below is Part II.

Due Process in a Criminal Case

Due process attaches in every criminal case because it is the State (by prosecuting the criminal charges) that is threatening to deprive the accused of life, liberty or property. In addition, the accused, as a citizen, has a legitimate entitlement to their freedom and/or property. Many due process protections related to a criminal case are found in the Bill of Rights, specifically the Fourth, Fifth, Six and Eighth Amendments. These rights include:

  1. Right to an attorney (If you are unable to afford an attorney the State is required to provide one free of charge).
  2. Presumption of innocence.
  3. Requirement of proof beyond a reasonable doubt by the State before a person can be found guilty (highest standard of proof in American courts).
  4. Right to review and challenge all of the evidence against you.
  5. Right to a speedy trial.
  6. Right to compel the attendance of witnesses to testify in behalf of the accused through the subpoena power of the Court.
  7. Right to testify on own behalf.
  8. Right to remain silent including not testifying at trial (remaining silent cannot be used against you at trial).
  9. Right to confront and cross-examine adverse witnesses.
  10. Right to a court trial (before a Judge) or a jury trial (consisting of 6-12 members). There is no right to a jury trial in petty misdemeanor cases.
  11. Right to legal counsel (normally at own expense in petty misdemeanors).
  12. Right to an appeal if found guilty.

Procedural Due Process Requirements

The amount of process that a person is entitled to in a criminal case depends on the severity of the charges. In Minnesota, criminal penalties can range from a misdemeanor (maximum punishment: 90 days jail and $1,000 fine) to a gross misdemeanor (maximum punishment: 1 year in jail and $3,000 fine) or a felony (punishment: over 1 year in prison and fine dependent on charges). A petty misdemeanor, although not considered a crime, is punishable by up to a $300 fine.

In Minnesota, criminal sexual conduct is separated into five categories with first degree being the most severe and fifth degree being the least severe. Criminal sexual conduct in the first through fourth degrees are all felony level offenses. Generally, fifth-degree criminal sexual conduct is a gross misdemeanor offense, except certain repeat offenses will raise the severity to a felony-level offense.

Procedural due process in a gross-misdemeanor-or-felony-criminal case requires that at least five steps be followed to prove your guilt. At the moment you are arrested/charged with a crime the above rights attach and it becomes the Government’s burden to prove your guilt. You are not required to prove your innocence in order to be found “not guilty.” The following is a broad overview of what the procedural due process looks like in a typical criminal case.

Gross Misdemeanor or Felony Procedural Due Process

1.       Arrest/Criminal Charges

When a sexual assault is reported to the police they will gather evidence, and submit the investigative materials to the prosecutor. A prosecutor will review the evidence to determine if they believe there is probable cause to charge you with a criminal sexual conduct offense, if not no charges will be filed. If the prosecutor finds probable cause a “complaint” will be signed by a judge and filed with the court, initiating formal criminal charges against you.

2.       Arraignment/First Appearance

At this hearing the judge will inform you of the charges against you and of your rights (above). If bail (conditions for your release from jail) has not been determined, the judge will decide those conditions, if any. The primary considerations for determining release conditions are (1) whether you are a flight risk (likelihood that you will not return to court) and (2) the risk to public safety if you are released. Finally, you will be given notice for your next court date.

3.       Omnibus Hearing

This hearing must occur within 28-days of the Arraignment unless you waive this right. At this hearing you will enter a “guilty” or “not guilty” plea. You will be able to examine and challenge all of the evidence against you. Finally, this is the first time that an impartial judge will examine the “complaint” and determine if he believes that there is probable cause for the case to go to trial. If the judge believes that probable cause is lacking he will dismiss the charges against you and you are free to leave.

4.       Pretrial

The purpose of this appearance is allow for negotiations between you and the prosecutor. If the prosecutor offers you a “plea deal” it is your choice whether or not to accept. You have an absolute right to have a trial, regardless of how much evidence the Government has against you.

5.       Trial

If your case does not settle you will proceed to trial. The trial must commence within 60-days of the Omnibus Hearing, unless waived by you. You may choose to have a court trial (in front of Judge) or a twelve-member jury trial. All of the above rights attach including your rights to confront your accuser, call witnesses, cross-examine the Government’s witnesses, and testify on your own behalf. It remains the Government’s burden to prove every element of the offense beyond a reasonable doubt. If you are found guilty beyond a reasonable doubt, then you will proceed to sentencing.

6.       Sentencing

At sentencing the judge will first look at the Minnesota Sentencing Guidelines. Next, the judge will consider the circumstances of the offense and your specific circumstances. Both you and the prosecutor will be able to recommend the appropriate sentence to the judge. The judge will then determine the appropriate sentence.

7.       Appeal

A defendant has a right to appeal the admission of evidence, conviction, sentence and certain pretrial decisions.

Victim Rights and Procedural Protections in a Sexual Assault Case

First, Minnesota has a “Rape Shield Law” barring admission of evidence of the victim’s past sexual conduct at trial, including counseling records, reputation testimony or specific instances of prior conduct. This evidence may be admitted when the court determines its probative value outweighs its prejudicial impact. This evidence is rarely admitted, but is relevant when consent is at issue to show prior sexual contact between the victim and the defendant. It is the accused’s burden to prove to the court that this evidence should be admissible.

Second, in sexual assault prosecutions the victim’s allegations and testimony does not need to be corroborated. This means that the courts may assume that the victim is making truthful allegations without any other evidence supporting those allegations. Most other criminal offenses require corroboration, or supporting evidence, before a case can proceed to trial.

There are many other victim’s rights in a sexual assault case that are not as relevant to this article, but can be found HERE.

“Consent” Is a Common Issue In Criminal Sexual Conduct Cases

In a criminal sexual conduct prosecution “Consent” is defined as:

Consent means words/overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the victim OR that the victim failed to resist a particular sexual act. A person who is mentally incapacitated [(i.e. overly intoxicated due to drugs or alcohol)] or physically helpless as defined by this section [(i.e. asleep or unconscious]) cannot consent to a sexual act. Corroboration of the victim’s testimony is not required to show lack of consent.

When a victim alleges that he/she was too intoxicated to consent it remains the Government’s burden to prove beyond a reasonable doubt that the victim was mentally incapacitated. You, as the defendant, are entitled to provide evidence supporting that the victim consented, but it is not required. If the Government fails to prove this “element” of the crime you cannot be found guilty of the offense.