Due Process: Title IX vs. Criminal Prosecution

You may have heard the term “due process” or related terms in recent news. 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 Allegation; and Part IV: Comparison of the Title IX and Criminal Prosecution Processes. Here is Part I.

What is Due Process?

The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution states that no one shall be “deprived of life, liberty or property without due process of law.” These clauses limit the actions of the Federal and State (local) governments. In order to claim a violation of you due-process rights you must show: (1) that you were threatened with deprivation of life, liberty or property through government action; (2) that you have a legitimate claim of entitlement to that interest. A person is generally not entitled to due process in a private setting, absent express language in a contract or collective bargaining agreement. There are two types of due process that must be adhered to in any government action, “procedural due process” and “substantive due process.”

Procedural Due Process

This refers to the fairness in the process and procedures. At a minimum this means that a person affected by a government actions has a right to notice of the intended actions and has a right to comment on the action. The amount of procedure due depends on a number of factors: seriousness of the harm that might be done to the citizen; risk of making an error without the procedures; and cost to the government, in time and money, in carrying out the procedures.

Aside from notice and the opportunity to be heard, procedural due process may include:

  • Right to receive and review all the evidence for and against you (Discovery)
  • Right to challenge the admissibility of evidence against you
  • A hearing before an impartial person
  • Right to remain silent or testify on your own behalf
  • Right to confront your accuser or aggrieved party
  • Calling witnesses on one’s behalf
  • Cross-examination of witnesses
  • A written decision with reasons based on evidence introduced
  • A transcript of the proceeding
  • An opportunity to appeal the decision

Substantive Due Process

Substantive due process refers to the examination of the reasons why the government passed a law or otherwise denied a person’s life, liberty, or property, regardless of the procedure the law provides. In other words, in order to deprive someone of their life, liberty or property the government must have a reasonable justification that furthers a legitimate governmental objective.

Substantive due process applies when government actions affect a person’s fundamental rights. Fundamental rights are those that are specifically enumerated in the United States Constitution (Bill of Rights) including:

  • The right to due process
  • The right to freedom of speech
  • The right to freedom of religion
  • The right to privacy
  • The right to marry
  • The right to interstate and intrastate travel
  • The right to equality
  • The right to assemble
  • The right to bear arms

If government action affects one of these fundamental rights then courts will review the action under a “strict scrutiny” standard. Under strict scrutiny, the burden of proof is on the government to show that their action is “narrowly tailored” (least restrictive means necessary) to further a “compelling governmental interest.” A compelling governmental interest, although, not clearly defined is one that is seen as necessary or crucial and may include interests related to national security, preserving the lives of a large number of individuals, and not violating explicit constitutional protections.

The articles to follow will focus more on describing and comparing the difference in procedural due process between the Title IX and criminal prosecution systems. Stay tuned for Part II: Due Process In Criminal Sexual Conduct Prosecutions.