Home > Attorney and Advisor Resources
Attorney and Advisor Resources
There are significant differences between the Georgia criminal justice process and the Georgia Southern University disciplinary process due to their different, but important, goals. In criminal justice cases, a prosecutor pursues cases when they believe they have sufficient evidence to prove, beyond a reasonable doubt, a person committed a criminal act. If convicted, the person faces criminal penalties such as incarceration, probation, or fines. In the college disciplinary process, the institution seeks to determine if someone has violated college policy. This process uses the standard of a preponderance of the evidence to determine responsibility for a violation. If a student is found to have violated college policy, they may be expelled from the institution, suspended for a period of time, or assigned other educational sanctions; an employee may face disciplinary action, including dismissal.
Below is a table outlined to help distinguish the differences between the Georgia criminal justice system and Georgia Southern University sexual misconduct process. You may click here for a printable version of this table.
Goals
Criminal Justice System
Public safety, deterrence, and punishment.
Institutional Sexual Misconduct Process
Education; safe and supportive environment.
Governing Law
Criminal Justice System
Georgia Code Title 17 – Criminal Procedure
Institutional Sexual Misconduct Process
Title IX; The Clery Act as amended by the Violence Against Women Act
How to Report and Whether There Must Be Action Once a Report Is Made
Criminal Justice System
Crimes involving sexual violence may be reported to campus police or a local police agency. Certain crimes may also be reported to federal law enforcement agents. Once a report is made, the decision whether to investigate is made by the police/law enforcement agency, often in consultation with a District Attorney or other prosecuting agency. An investigation may be conducted without the consent or participation of a reporting individual. The ultimate decision of whether to initiate a criminal prosecution is initially made by a prosecutor. In cases involving felony charges, the final charging decision is made by a Grand Jury.
Institutional Sexual Misconduct Process
Victims may disclose sexual violence to college employees who are designated confidential resources. At Georgia Southern this is Health Services and Counseling Services. Victims may disclose to other employees who will try to ensure privacy to the extent consistent with the institution’s obligation to provide a safe educational environment. Disclosures made to a confidential resource will not trigger an investigation. Disclosures made to other employees, who are considered Responsible Employees, must be shared with the Title IX Coordinator (TIXC). If requested by the victim, the TIXC will consider whether a request for confidentiality can be honored consistent with the institution’s obligations to promote a safe and nondiscriminatory environment, or if they must proceed with an investigation. A victim may also indicate to the TIXC they would like to proceed with an investigation.
Who Investigates
Criminal Justice System
Police or other law enforcement officials.
Institutional Sexual Misconduct Process
Investigators employed by the institution in the Office of Equal Opportunity & Title IX or within the institution who have been trained to investigate sexual misconduct cases.
Procedure
Criminal Justice System
See Governing Law. Procedures established by police departments, prosecutors’ offices, etc.
Institutional Sexual Misconduct Process
The University System of Georgia Sexual Misconduct Policy; The University System of Georgia Standards for Institutional Student Conduct Investigation and Disciplinary Proceedings; Georgia Southern University Student Code of Conduct (students); Human Resources Administrative Practice Manual (employees).
Standard of Evidence/Burden of Proof
Criminal Justice System
Crimes must be proven “Beyond a Reasonable Doubt.”
Institutional Sexual Misconduct Process
A violation of disciplinary rules requires a “Preponderance of the Evidence” (more likely than not).
Confidentiality
Criminal Justice System
Law enforcement agencies offer some confidential assistance, but a criminal charge and trial must be public.
Institutional Sexual Misconduct Process
The institution offers confidential resources, but a disciplinary proceeding requires that relevant information be shared with both parties.
Privacy
Criminal Justice System
Criminal trials must be public.
Institutional Sexual Misconduct Process
Disciplinary proceedings are kept as private as possible, but information must be shared with certain individuals within the institution, the parties, and pursuant to law. Under Title IX, sexual misconduct cases include the right to a hearing before a misconduct panel (for students) or hearing panel (for employees).
Who Are the Parties?
Criminal Justice System
The prosecution and the defendant. The victim/survivor is not a party, but often the critical witness for the prosecution.
Institutional Sexual Misconduct Process
The Complainant, the individual who is alleged to have experienced the conduct, and the Respondent, the individual who is alleged to have engaged in the conduct.
Participation in the Process
Criminal Justice System
In limited circumstances, a criminal prosecution can proceed without the participation or cooperation of the reporting individual, but without a reporting individual’s participation, it is generally more difficult to prove a crime beyond a reasonable doubt.
Institutional Sexual Misconduct Process
Complainants and Respondents cannot be required to participate in the college process. However, the institution will be limited in its ability to respond if a Complainant does not participate.
Who Initiates the Proceedings?
Criminal Justice System
A prosecutor, acting on behalf of the state (or the United States in federal cases).
Institutional Sexual Misconduct Process
The institution initiates the proceedings, however in certain circumstances a formal complaint/written request is needed. The Complainant is provided an active role.
Investigatory Process
Criminal Justice System
Law enforcement actively builds a case to present to the District Attorney.
Institutional Sexual Misconduct Process
The burden of collecting evidence sufficient to reach a determination regarding responsibility rests with the investigator and not on the parties. Throughout the process the investigator and TIXC must remain neutral parties.
Review of the Evidence
Criminal Justice System
In the criminal process, both sides provide each other with evidence within their possession before trial. See governing law above.
Institutional Sexual Misconduct Process
A draft investigation report is provided to the Complainant, Respondent, and a party’s advisor, summarizing relevant evidence gathered during the investigation and indicating any resulting charges or alternatively, a determination of no charge. This is a review and comment period, however whether any additional investigation is needed is at the discretion of the investigator and TIXC.
Testimony and Cross Examination
Criminal Justice System
In a court, testimony is generally public. Other parties are, through counsel, entitled to cross-examine witnesses.
Institutional Sexual Misconduct Process
The Complainant and Respondent have an opportunity to ask questions of each other and witnesses at a hearing. In Title IX Sexual Misconduct proceedings (vs. Non-Title IX Sexual Misconduct proceedings), each party’s advisor may ask the other party and any witnesses all relevant questions and follow-up questions, including challenging credibility.
Advisors conduct cross examination for parties to the extent the parties are present and participating at the hearing.
The advisor does not involve otherwise speaking for, or making objections on behalf of, their party.
Advisors are not meant to be “zealous advocates” for their party, as may be the case for attorneys in legal proceedings.
At the request of either party, the parties may be in separate rooms using technology to hear and see the party and witnesses.
Rules of Evidence
Criminal Justice System
See governing law.
Institutional Sexual Misconduct Process
Formal judicial rules of evidence do not apply to the investigatory or resolution process.
Role of Attorneys
Criminal Justice System
Both the state and the defendant are represented by counsel; counsel may question witnesses. Attorneys directly advocate for and speak for their client.
Institutional Sexual Misconduct Process
The Complainant and Respondent may have an advisor of their choice who may or may not be an attorney. Advisors may provide guidance and support and be present at meetings, but may not otherwise participate in the process with the exception of conducting cross-examination in a Title IX Sexual Misconduct hearing. All communication takes place between the institution and the party, not the advisor. In the Title IX Sexual Misconduct Process, the institution will copy the party’s advisor prior to finalization of the investigation report.
Advisors are not meant to be “zealous advocates” for their party, as may be the case for attorneys in legal proceedings.
Mental Health and Sexual History
Criminal Justice System
In Georgia, a victim’s prior sexual and mental health history is generally, but not always, inadmissible in a criminal case. There are limited circumstances under which directly related evidence of that kind may be admitted.
Institutional Sexual Misconduct Process
Generally not admissible, with limited exception. The Complainant’s sexual predisposition or prior sexual behavior will be irrelevant unless offered to prove someone other than the Respondent committed the alleged conduct or consent between the parties during the alleged incident. Medical and mental health records will be excluded unless the party provides voluntary written consent.
Possible Results
Criminal Justice System
If a prosecution takes place, the defendant may:
- Plead guilty or “no contest”
- Have the case dismissed by the judge (on legal grounds)
- Be found “guilty” or “not guilty” by a judge or jury
Institutional Sexual Misconduct Process
In sexual misconduct cases other than an allegation by a student against an employee, a case may be resolved through informal resolution if all parties agree and it is deemed appropriate by the institution. If there is a formal resolution/hearing, the Respondent may be found “responsible” or “not responsible” for violations of the Sexual Misconduct Policy.
Appeals
Criminal Justice System
See governing law.
Institutional Sexual Misconduct Process
The Complainant and Respondent have the right to appeal a formal resolution/hearing on specified grounds. An appeal is made in writing within a designated time frame. Appeals are a review of the record only and do not include meetings with the parties.
Sanctions
Criminal Justice System
An individual found guilty may be fined, imprisoned, or both. In some courts, alternative sanctions are sometimes used.
Institutional Sexual Misconduct Process
An individual found responsible for violating institutional policy may be given a range of sanctions (depending on the severity of the conduct and other factors, such as prior conduct history), ranging from a warning to education, to suspension or expulsion from the institution, etc.
*Adapted from the State University of New York
Last updated: 11/10/2023