I recently had a phone consult with a young man in college. Correction—a young man who was in college. Let’s call him Joe. Joe called because he was expelled for non-academic student misconduct and wanted to know what he should do moving forward. You may be wondering why he wanted to speak to a criminal defense lawyer. We’ll get there.
Here are the quick facts: young male, freshman, athlete, fraternity member—was out drinking on the weekend and brought two females home. They had a threesome. They were all blackout drunk. To be clear, the student misconduct had nothing to do with sexual assault. All three parties admitted to all acts being consensual. That is not to say he couldn’t have been charged.
The next morning, Joe’s told by various individuals that he went overboard the previous night when he recorded and sent Snapchat videos of the naked females performing sexual acts on him. The females had no idea they were being recorded.
One of the female victims filed a complaint under her University’s Sexual Harassment Policy. His team dismisses him. His fraternity dismisses him. His University conducts an extensive investigation and finds grounds to expel him. The grounds for his expulsion are twofold: (1) sexual exploitation by publishing a visual record of sexual activity without the consent of all recorded parties and (2) engaging in sexual activity when a party was incapacitated by alcohol and, thus, unable to consent to sexual activity.
“Oh, my god. Are you being criminally charged?” Nope.
“Why do you think you need a criminal defense lawyer?” I have 14 days to file an appeal. What do you think?
What do I think? We told him administrative decisions are given great deference and appeals boards rarely overturn disciplinary decisions for student misconduct. We told him those scarlet words on his transcript “expelled for non-academic misconduct” weren’t going anywhere but the appeal could be critical. We wouldn’t be attacking the actual disciplinary decision. The appeal was about fighting the second ground of expulsion.
Why does it matter? In every subsequent college application, grad school application, professional licensure investigation, certain job applications, and maybe even in future criminal defense trials—a dreaded question may come up:
“Are you currently, or have you ever been, charged with, or subject to, disciplinary action including suspension or expulsion for scholastic or any type of misconduct at any high school, college, or university?”
Under the university’s administrative decision, how would Joe answer the above question?
“Yes. I was expelled for non-academic misconduct. The grounds were sexual exploitation and sexual activity with another woman without her consent.”
Imagine being on an admissions board and seeing that. A young man with no criminal conviction for a forcible sexual act—having to disclose that he was disciplined for a forcible sexual act. This is the stuff of nightmares. Under the university’s second ground for expulsion, it had grounds to expel Joe and both victims—which makes no sense. Essentially, our argument would have been—we admit fault on both grounds but for the sake of whatever’s left of this young man’s future, please reconsider the second.
We explained to Joe and his parents that this appeal was essentially a written criminal defense sentencing hearing. Acknowledge fault. Acknowledge fault. Acknowledge fault. Beg for mercy.
Let that be a lesson to all of us in 2017 and in the age of Facebook, Twitter, Instagram, and Snapchat—that one, ill-advised Snap could be the reason you get criminally prosecuted as a sex offender, expelled from college, why you don’t get accepted into law school, and why the bar examiners don’t license you despite graduating law school.
Be above the influence I guess? Think before you Snap.