Title IX vs. Criminal Investigations: What to Know

Recent high-profile campus sexual misconduct cases have brought greater attention to the relationship between institutional Title IX processes and criminal investigations. While the same incident may give rise to both, the two processes serve different purposes, operate under different standards and can reach different outcomes.

As Title IX professionals know, a report of sexual assault at a college or university may lead to a Title IX process, a criminal investigation, or both. Communicating the distinction between these options matters when a student is deciding whether and where to report, and when a campus community has questions about an institution’s response.

1. What are some key differences between a Title IX investigation and a criminal investigation?

A Title IX investigation is an administrative process that examines whether the college or university’s Title IX policy was violated. Within that process, the investigator gathers information that could support or refute the allegations. A separate decision-maker determines responsibility. The parties must be treated equitably, and the respondent is presumed not responsible until a determination is made and finalized. The Title IX process is a confidential one, with student records and information protected by the Family Educational Rights and Privacy Act (FERPA).

A finding of responsibility may lead to institutional sanctions and remedies designed to restore or preserve access to education.

A criminal investigation examines a possible violation of criminal law. Law enforcement gathers evidence that prosecutors use to evaluate whether to pursue charges. Criminal guilt is determined through the criminal justice system, not through the institution’s Title IX process. The criminal process also usually takes much longer to resolve a case. Finally, the criminal justice system is by and large a public forum, the outcomes of which are available to the public.

The processes may examine the same incident, but a finding that someone violated institutional policy is not the same as a criminal conviction.

2. Can a student report a sexual assault to both Title IX and law enforcement?

Yes. A student can report to the institution, law enforcement, or both. The Jeanne Clery Campus Safety Act (Clery Act) requires covered institutions to explain the complainant’s options to notify law enforcement, receive campus assistance doing so, or decline to notify law enforcement.

Within the institution, reporting an incident is different from filing a formal complaint requesting an investigation. An individual considering reporting a sexual assault can discuss reporting options and available support with the Title IX Coordinator before deciding whether to request an investigation.

Supportive measures are individualized, nonpunitive services available without charge to complainants and respondents as appropriate. They may include counseling, academic deadline adjustments, or housing changes. These measures can be available without a formal complaint and are intended to support educational access without unreasonably burdening the other party.

Federal regulations also allow the Title IX Coordinator to sign a formal complaint requesting an investigation, even when the complainant does not request one, in certain circumstances. This does not mean every report automatically leads to an investigation.

When discussing options with a potential complainant, it can be helpful to explain the steps the institution may be required to take, as well as the limitations the institution faces. Clarifying applicable reporting and confidentiality requirements from the beginning can help students understand what may happen after they report.

3. Can Title IX and criminal investigations proceed at the same time?

Yes. An institution’s Title IX responsibilities continue when law enforcement is involved. For allegations within Title IX’s scope, the Coordinator must promptly contact the complainant to discuss supportive measures and explain the formal complaint process.

Concurrent law enforcement activity can justify a temporary delay or limited extension of the Title IX grievance process for good cause depending on a school’s Title IX policy. The institution must provide both parties written notice explaining the delay or extension and its reasons.

Coordination between the Title IX office and the corresponding law enforcement agency can involve practical questions about timing and information-sharing: Does law enforcement need a short period to collect particular evidence? Will the delay result in the sharing of evidence between the two processes? Who will communicate any timeline changes to the parties? When will the institution reassess the need for a delay? 

Supportive measures remain available, as appropriate, during a temporary delay in the investigation.

4. What information can be shared between a Title IX process and law enforcement?

Communication and information-sharing between an educational institution and law enforcement can vary across institutions and jurisdictions. Questions may arise about a school’s obligation to notify law enforcement about a possible offense shortly after learning of the allegations, whether evidence such as interview transcripts, reports, or physical evidence obtained during an investigation will be shared while investigations are ongoing, and whether the school will notify law enforcement of the outcome of a Title IX investigation.

Generally, a Title IX office will not share information about specific individuals unless disclosure is permitted or required. FERPA protects personally identifiable information in students’ education records from disclosure without appropriate consent, unless an exception applies. A request from police is not, by itself, blanket authorization to release protected records.

Some institutions have developed Memoranda of Understanding with local police in which law enforcement agrees to provide certain information to the school. It is important to be mindful of the possibility of causing additional trauma by repeated interviews, and sharing information can be helpful in minimizing retraumatization. Developing a positive working relationship between law enforcement and the Title IX office and establishing protocols for how these teams can work in parallel can help the Title IX team. At the same time, it is critical to note that a Title IX office is not a branch of law enforcement, and its goals and principles are quite different.

5. Why can the Title IX and criminal processes reach different outcomes about the same incident?

Even when both processes examine the same incident, they may involve different definitions of prohibited conduct, consider different evidence, and always apply different standards of proof.

Definitions of prohibited conduct

An institution’s provisions concerning consent or incapacitation may not match the legal elements of a particular criminal offense. Federal Title IX regulations do not require institutions to adopt one particular definition of consent, and schools must follow the definitions as laid out in their Title IX policies and procedures throughout the Title IX process.

Evidence available to each investigation

One investigation may obtain information the other does not have. For instance, criminal investigators may use law enforcement tools, such as search warrants and subpoenas, that are not available to a Title IX investigator acting in that role. Furthermore, Title IX prohibits the consideration of certain evidence that might be admissible in a criminal prosecution.

Standards of proof

Federal Title IX regulations permit institutions to use either the preponderance of the evidence standard or the clear and convincing evidence standard. Preponderance asks whether the evidence demonstrates that allegations of a policy violation are more likely than not. Clear and convincing evidence requires a higher degree of certainty, commonly described as highly probable.

A criminal conviction requires a much higher standard: proof beyond a reasonable doubt. That standard is not the threshold for every earlier step, such as an arrest. However, when deciding whether to prosecute, a prosecutor will likely consider whether sufficient evidence can ultimately be presented at trial to establish proof beyond a reasonable doubt.

When discussing outcomes, precise language can help prevent confusion. A decision not to prosecute, an acquittal at a criminal trial, and a finding of no institutional policy or Title IX violation describe different decisions. One outcome does not automatically determine the outcome of the other process.

6. Are students required to participate in a Title IX investigation?

Students are not required to participate in Title IX investigative interviews. This applies to complainants, respondents, and witnesses. A student may decline to participate in one or all aspects of a Title IX investigation. It is not uncommon for a respondent to decline to participate in a Title IX investigative interview, often on the advice of counsel, particularly when a parallel criminal investigation is possible. Federal regulations prohibit retaliation against someone for participating or refusing to participate in the process. Faculty and staff involved in a Title IX investigation may, however, be required to participate as a condition of their employment.

Nonparticipation does not necessarily end the institutional process. The institution may be able to proceed using other available evidence, although whether sufficient evidence remains to reach a determination depends on the circumstances.

The criminal process has different rules. Witnesses may be compelled to testify in many circumstances, though the Fifth Amendment to the U.S. Constitution protects against compelled self-incrimination. Individuals with questions about how participation could affect their legal interests should consult their own counsel.

7. What can an institution explain publicly about a Title IX case?

Institutions and Title IX practitioners may understandably want to respond to concerns and questions from students, families, faculty, and staff, perhaps even defending the decisions they have made and the work they have done. However, privacy obligations limit the disclosure of case-specific details, including evidence, findings, and the reasoning behind sanctions.

What the institution provides to the parties is different from what it can disclose publicly. All parties in an investigation and their advisors receive access to the entire Title IX file, which includes evidence, the investigative report, and written determinations. Public disclosure is a separate question. While schools are required to report certain statistics under Clery, they are not at liberty to share the details of a Title IX investigation that are provided to the parties.

Those limitations do not change simply because a case becomes newsworthy. At the same time, limited public information can leave room for questions or misunderstanding.

A coordinated approach between Title IX offices, legal counsel, and communications staff can help the institution respond within those limits. Even then, the campus community may feel that this does not provide enough transparency. Training the entire campus community on the restrictions under which the institution must operate, and engaging in ongoing conversation about the various requirements of Title IX, may help the community better understand the process. Public explanations can address the applicable procedures, the roles of different offices, and available resources without disclosing protected case information.

A more user-friendly experience, approachable staff, and clear communication with parties throughout a Title IX investigation can also help build trust between the institution and its students, faculty, and staff. 

Early involvement from a trained Title IX advisor can also help complainants and respondents understand what to expect, prepare for each stage of the process, and make informed decisions about participation.

Supporting a coordinated campus response

These questions can help institutions review how their people, policies, and procedures support students and coordinate the response to reports of sexual assault:

– How do you support a student in understanding their options for reporting a sexual assault and initiating one or both processes?

– Are Title IX and communications staff prepared to explain the Title IX and criminal processes, and do they understand what they can and cannot disclose about a case?

– Do your policies and procedures clearly outline how parallel investigations and requests for records are coordinated?

Please Note: The information provided in this article is for educational purposes only and is not intended to be legal advice. We recommend seeking independent legal advice concerning the issues presented in evaluating a particular incident.

For Media

Susanna Murphy, JD, Director of Investigations at Title IX Solutions, is available to speak with journalists about Title IX investigations, the intersection of campus and criminal investigations, complex sexual misconduct matters, and institutional investigative processes.

For media inquiries, contact info@titleixsolutions.com