fraud texas murder harassment rape
Is it possible to pursue criminal charges against administrators abusing title IX?
<p>The article in "Reason" <a href="http://reason.com/blog/2017/04/12/lawsuit-male-student-accused-of-sexual-h" rel="nofollow noreferrer">here</a> describes a case of a straight student who was allegedly denied due process, <strong>despite university policy</strong>, after he politely refused advances of a gay student and the said gay student filed a sexual harassment complaint against him.  The straight student was so distressed with the possibility of being found guilty that he committed suicide.  </p>

<p>The family of the student who killed himself is now suing the school for, "among other things, violating his Title IX rights."</p>

<p>However, these are just civil penalties.  It is alleged that the wrongful harassment finding was a result of a collusion between the gay student and one of the university's administrators.  </p>

<p>My question is why isn't there any criminal investigation?  It would seem that any institution which accepts large payments under the guise of following a certain policy and then does not follow the said policy is, at the very least, committing fraud.  Isn't fraud a criminal matter?  And since individuals alleged to be involved in this are in administrative positions, shouldn't the university's internal investigation be considered to be automatically tainted?  Given these facts, shouldn't the police (the actual police rather than campus police) investigate this and possibly recommend criminal prosecution of anyone involved in such fraud?  Especially since, in this case, it resulted in an avoidable loss of life?  </p>

<p><strong>My broader question is what other criminal charges can be leveled?</strong>  If they are found guilty of fraud, could the felony murder rule apply?  It seems like callous behavior which leads to a foreseeable death deserves a bigger punishment than just firing of the administrator.  And if the only actions brought are civil, then the University would be the defendant and the actual individuals who were involved would not themselves even face any trial.</p>

<p><strong>EDIT</strong>:  after the answer and comments below, I think I should elaborate why I think a crime may have been committed if the alleged facts are true.</p>

<ol>
<li>There was an alleged conspiracy between an administrator and the false accuser.  This means that the university policy was not followed not through an error or misjudgement, but rather through a deliberate and willful effort by the said administrator.</li>
<li>While claiming to provide a process ensuring safe environment and fair treatment for all students of the university, and collecting payment for the purposes of providing such environment, it is alleged that the administrator willingly, willfully and deliberately assisted in harassment and engaged in encouraging of potentially violent behavior towards a student who was guilty of nothing but rejecting a sexual advance.</li>
<li>The administrator benefited financially from the claims that the university provided a safe and fair environment for its students because of the salary drawn from the university.  And specifically, from the fact that all students, even the ones who were victims of malicious targeting in retaliation for rejecting sexual advances, were paying clients of the university before and after such targeting occurred. </li>
<li>While only one case of such targeting has come to light, it is conceivable that this is due to the fact that the case in question had the exacerbating factor of a student suicide.  There may have been more cases of students becoming victims of targeting in retaliation for rejecting sexual advances, and that those students could have chosen to not draw attention to their plight because of asymmetry of power between them and the university. </li>
</ol>

<p><strong>Since, this is not a hypothetical, but an actual case, I should say that all the facts of the case are so far only alleged and, to my knowledge, not established.  I have no material proof of any of them.  And my interest in the case is purely for educational purposes.</strong></p>

<p><strong>EDIT 2</strong>: since so much of the discussion in the answers and comments has centered on whether fraud charges are justified, I want to re-emphasize that the broader question was whether any criminal charges can be brought if the alleged facts are true.  </p>

<p>The only reason this case has gained national attention is because of the exacerbating factor of the victim committing suicide.  But there maybe other victims, in similar situations, who are not protected by the criminal justice system if nothing of what is alleged to have transpired is deemed illegal.  </p>

<p>This opens door to sexual coercion by any sexual predator willing and able to pay off (through a settlement) victims brave enough to challenge them in a civil action.  It puts no one abusing the Title IX system in this manner in the jeopardy of criminal prosecution (in which paying off victims would not always be an option).  There is a reason why we don't handle rapes (for example) in civil courts.  Criminal justice system exists to make sure that, at least in theory, those who commit heinous acts cannot buy their way out of consequences of those actions.</p>

<p>So back to the main question, what, if any, <strong>criminal charges</strong> can be leveled against the administrator and the false accuser if the alleged facts of the case can be confirmed to be true?</p>

<blockquote>
  <p>It seems like callous behavior which leads to a foreseeable death
  deserves a bigger punishment than just firing of the administrator.</p>
</blockquote>

<p>The starting point of the analysis is that no one is legally responsible, civilly or criminally, for a suicide <a href="https://law.stackexchange.com/questions/18290/is-this-passive-induction-of-suicide/18301#18301">unless that person intended that the person who committed suicide do so</a>, which is almost certainly not true in this case.</p>

<p>As a matter of law, a suicide caused by merely callous behavior not intended to cause someone to commit suicide is not foreseeable.</p>

<blockquote>
  <p>And if the only actions brought are civil, then the University would
  be the defendant and the actual individuals who were involved would
  not themselves even face any trial.</p>
</blockquote>

<p>This is not accurate. </p>

<p>It would be routine to bring suit against anyone personal involved (probably both the administrator and the gay student who allegedly colluded), as well as the University, and indeed, the likelihood of a recovery against one or both of the individuals would be greater than the chance of recovery against the University. </p>

<p>To recover against the University it would be necessary to show that the Title IX violation occurred pursuant to an officially approved policy or practice of the University, but this case seems to have at its heart, a failure to an administrator to follow a policy of the University.</p>

<p>It might be possible to sue the University or someone involved in the process for a violation of his civil rights, but generally speaking, his death would not constitute recoverable damages in a such a suit.</p>

<p>Also, generally speaking, a Title IX claim requires that any party held liable to have had an intent to violate someone's civil rights, rather than that the person was merely mere inept or negligent in implementation or non-implementation of a bureaucratic policy or dispute resolution procedure. </p>

<p>This is alleged by the Plaintiff, probably in part because it has to be to prevent the case from being dismissed on the pleadings, but is quite implausible that this really happened that way, and this is difficult to prove unless there is some really hard evidence backing up the alleged collusion.</p>

<p>Generally speaking, the fact that a hearing board comes up with a wrong conclusion after allegedly not following proper procedure, is not actionable for damages and certainly wouldn't constitute fraud.</p>

<p>UPDATED RESPONSE TO EDIT 2:</p>

<blockquote>
  <p>there maybe other victims, in similar situations, who are not
  protected by the criminal justice system if nothing of what is alleged
  to have transpired is deemed illegal</p>
</blockquote>

<p>It is a common fallacy that if something is not a crime, that it is not illegal or that there are no remedies. A civil lawsuit is a common and often appropriate remedy for all manner of wrongs, and the compensatory and injunctive remedies for civil wrongs such as a breach of contract and torts such as the intentional infliction of emotional distress are often significant. This said, as a government entity, the University of Texas and its employees are probably immune to many tort causes of action that would be available against a private party engaged in the same conduct. </p>

<p>In this case, probably the only viable causes of action against the University of Texas itself, as opposed to the responsible individuals in a particular case, would be for breach of contract for not actually carrying out its policies as impliedly promised, and for injunctive relief under Title IX insisting on new policies that would prevent misconduct in disciplinary proceedings.</p>

<p>Generally speaking, a criminal law remedy is less victim oriented than a civil remedy and is outside the control of the victim, which can be traumatic for a victim who would prefer not to be involuntarily dragged into the criminal justice process. The notion that settlement is not possible in the criminal justice system is likewise mostly incorrect.</p>

<blockquote>
  <p>There is a reason why we don't handle rapes (for example) in civil
  courts. Criminal justice system exists to make sure that, at least in
  theory, those who commit heinous acts cannot buy their way out of
  consequences of those actions.</p>
</blockquote>

<p>In fact, one can bring a cause of action for a rape in a civil court. I've done it. And, the lower threshold of proof, the lack of a right to remain silent without legal consequences under the 5th Amendment, the greater focus on compensation for the victim, and the greater level of control of the victim are all good reasons to pursue this route. Many cases of rape by people able to afford to pay compensation are also cases of actionable sexual harassment.</p>

<p>In general, criminal law is the solution that is usually resorted to not so much because the acts committed are heinous, but because the typical person who violates a law that is criminally prosecuted is judgment proof and unable to pay compensation that is even remotely proportionate to the harm done, so a civil remedy does not discourage that behavior. Your typical rapist <em>who is prosecuted in the criminal justice system</em> isn't capable of paying meaningful compensation to a victim, although there are always exceptions.</p>

<p>Preventing people from buying their way out of their wrongdoing is almost never advanced by criminal justice scholars as a reason for a criminal justice remedy. And, when I have clients who have been harmed, for example, by fraud, most would far prefer to receive compensation from the wrongdoer, than to see the perpetrator punished without receiving any meaningful compensation for their own injuries, which is the usual result in the criminal justice process. Most people think of the criminal justice system as more of a last resort when all other options fail than as a good first choice which it rarely is even when it is the least bad option.</p>

<blockquote>
  <p>So back to the main question, what, if any, criminal charges can be
  leveled against the administrator and the false accuser if the alleged
  facts of the case can be confirmed to be true?</p>
</blockquote>

<p>In the fact pattern presented, where a public official at the University of Texas conspires with a student with whom the official has a pre-existing personal relationship to produce an intentionally inaccurate result in a University disciplinary hearing harming a defendant in that process, there are several university statutes that might form a basis for criminal action against either the public administrator or the conspiring student on the offense identified or conspiracy to commit the offense identified. In no case are any criminal charges against the University of Texas a plausible option in this fact pattern.</p>

<p>Each of the offenses is a misdemeanor under Texas law.</p>

<p>The best fit is "improper influence". Texas Penal Code § 36.04. This involves reaching an outcome in an adjudication for a reason other than one legally allowed due to someone's application of influence other than a bribe or kickback. The section states:</p>

<blockquote>
  <p>(a) A person commits an offense if he privately addresses a
  representation, entreaty, argument, or other communication to any
  public servant who exercises or will exercise official discretion in
  an adjudicatory proceeding with an intent to influence the outcome of
  the proceeding on the basis of considerations other than those
  authorized by law.</p>
  
  <p>(b) For purposes of this section, “adjudicatory proceeding” means any
  proceeding before a court or any other agency of government in which
  the legal rights, powers, duties, or privileges of specified parties
  are determined.</p>
  
  <p>(c) An offense under this section is a Class A misdemeanor.</p>
</blockquote>

<p>Two other possibilities are "abuse of official capacity", Texas Penal Code §39.02, or "official oppression" Texas Penal Code § 39.03. These sections and a related one, read as follows in the pertinent or potentially pertinent parts:</p>

<blockquote>
  <p>Sec. 39.01.  DEFINITIONS.  In this chapter:</p>
  
  <p>(1)  "Law relating to a public servant's office or employment" means a
  law that specifically applies to a person acting in the capacity of a
  public servant and that directly or indirectly:</p>
  
  <p>(A)  imposes a duty on the public servant;  or</p>
  
  <p>(B)  governs the conduct of the public servant. . . .</p>
  
  <p>Sec. 39.02.  ABUSE OF OFFICIAL CAPACITY.  (a)  A public servant
  commits an offense if, with intent to obtain a benefit or with intent
  to harm or defraud another, he intentionally or knowingly:</p>
  
  <p>(1)  violates a law relating to the public servant's office or
  employment  . . .</p>
  
  <p>(b)  An offense under Subsection (a)(1) is a Class A misdemeanor. . .
  .</p>
  
  <p>39.03.  OFFICIAL OPPRESSION.  (a)  A public servant acting under color of his office or employment commits an offense if he: . . . </p>
  
  <p>(2)  intentionally denies or impedes another in the exercise or
  enjoyment of any right, privilege, power, or immunity, knowing his
  conduct is unlawful;  or</p>
  
  <p>(3)  intentionally subjects another to sexual harassment.</p>
  
  <p>(b)  For purposes of this section, a public servant acts under color
  of his office or employment if he acts or purports to act in an
  official capacity or takes advantage of such actual or purported
  capacity.</p>
  
  <p>(c)  In this section, "sexual harassment" means unwelcome sexual
  advances, requests for sexual favors, or other verbal or physical
  conduct of a sexual nature, submission to which is made a term or
  condition of a person's exercise or enjoyment of any right, privilege,
  power, or immunity, either explicitly or implicitly.</p>
  
  <p>(d)  An offense under this section is a Class A misdemeanor . . .</p>
</blockquote>

<p>Also, in all three of these cases, the fact that someone committed suicide afterwards is basically irrelevant legally.</p>

<p>For there to be criminal prosecution (the end point of a criminal investigation), there has to be a violation of a criminal statute. Title IX does not contain any such provisions. It is incorrect that an "institution which accepts large payments under the guise of following a certain policy and then does not follow the said policy" commits fraud. The Texas fraud statute is <a href="http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.32.htm" rel="nofollow noreferrer">here</a>: there's basically nothing there that would support a fraud prosecution. Generally speaking, fraud is <em>not</em> "the same as bad behavior".</p>

<blockquote>
<p>It would seem that any institution which accepts large payments under the guise of following a certain policy and then does not follow the said policy is, at the very least, committing fraud.</p>
</blockquote>
<p>Nope. If I accept a lot of money from you to deliver you a product and then do not deliver the product, that's normally just civil breach of contract. Fraud involves deception: I have to be making representations that I know to be untrue. I could fully intend to deliver the product, or to have my employees follow certain policies, but things might work out differently. That's not criminal.</p>
<p>Texas considers fraud to be a type of theft: it's theft if property is taken without &quot;effective consent,&quot; and consent is not effective if obtained by deception. Deception is defined as:</p>
<blockquote>
<p>(A)  creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;</p>
<p>(B)  failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;</p>
<p>(C)  preventing another from acquiring information likely to affect his judgment in the transaction;</p>
<p>(D)  selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record;  or</p>
<p>(E)  promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.</p>
</blockquote>
<p>(C) and (D) obviously don't apply here. (A), (B), and (E), you'll notice, involve a false impression that the actor does not believe to be true. If the university intends to follow the policies it sets out, the fact that some employee does not follow them doesn't make it fraud. (E) also makes it quite clear that if I take money in return for a promise to do something and don't do it, that is not enough to convict me of fraud. A fraud conviction under (E) <em>requires</em> evidence that speaks directly to my intent or knowledge.</p>
<blockquote>
<p>If they are found guilty of fraud, could the felony murder rule apply?</p>
</blockquote>
<p>In Texas, a person commits felony murder who:</p>
<blockquote>
<p>commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.</p>
</blockquote>
<p>The felony murder rule is generally much narrower than &quot;any felony + someone dies = murder 1.&quot; Most (if not all) states impose extra requirements. Texas imposes two. First, it's only felony murder if the defendant <em>personally</em> committed a clearly dangerous act. Some states restrict felony murder to a list of dangerous offenses (which theft is not generally on). Texas instead requires that <em>this specific crime</em> involved an act &quot;clearly dangerous to human life.&quot; Second, <em>that specific act</em> must have caused the death. Whatever the actions of UT Arlington may have been, they were not clearly dangerous to human life. That means that it could not have been felony murder.</p>
