Last Updated on September 3, 2024 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
There are many serious issues in California schools. One devastating offense involves student sexual assault, which can end in school expulsion and criminal charges. Sexual assaults harm everyone involved.
What is a School Sexual Assault?
What constitutes a school sexual assault is defined in the criminal codes (aka the “Penal Codes”) by way of Education Code section 48900(n).
In a very very simplified summary, acts which can potentially constitute student sexual assault, may include:
- Rape (penal code 261)
- False or fraudulent inducement of sexual acts (penal code 266c)
- Sodomy (penal code 286)
- Oral copulation (penal code 287)
- Lewd or lascivious acts (penal code 288)
- Sexual penetration (penal code 289)
This includes, but is not limited to, nonconsensual sexual contact of any kind, sexual contact with students of certain ages, with unconscious students, or students who legally can’t consent (as described much more completely in the links above).
No, That Wasn’t Sexual Assault- I Had Consent!?
The concept of sexual consent is truly an adult concept. Being a teen facing sexual decisions can be problematic at best. We all know some teenagers will have sexual encounters. Problems can arise when matters go too far. But what is too far is not always clear-cut, and may largely be in the eye of the accuser, based on age or circumstances. It is often VERY murky water for kids.
Maybe a student did not have consent for grabbing their girlfriend’s breast behind the school art building, although they thought they did. Maybe a student pushed, pressured or cajoled another student to have a sexual encounter and the student did not really consent even though they said they did.
Or, maybe a student took advantage of another student who legally could not consent due to the nature of the act, their age, or cognitive status. What a minefield.
Often, even if a student thinks an act is consensual, it may turn out later it was not. A school sexual assault allegation may arise.
Unfortunately, chastity and strictly platonic involvement with other students may be the most effective way for students today to avoid a student sexual assault allegation.
Sexual Assault is a Mandatory Expulsion Offense
If a student is thought to have committed a sexual assault, they must be recommended for expulsion as it is a mandatory expulsion offense.
Sexual assault is one of the “Big 5” mandatory school expulsion offenses in California and school districts have no discretion in issuing some form of expulsion for students proven to have committed a sexual assault. Suspended expulsions are still options, but it depends on many factors, whether schools are willing to negotiate one.
Criminal Charges May Also Occur
Sadly, an alleged school sexual assault often also garners criminal charges against an accused student. Whether juvenile or other criminal charges are actually pursued will depend on the age of the student and the facts surrounding the situation.
Oftentimes, police will be involved somehow in an investigation of student sexual assault allegations. Sometimes schools simply defer to local police to gather information.
However, criminal timelines are much longer than school procedural mandates. As such, a school may have to go to an expulsion hearing before the police matter is complete.
Title IX Investigation Precedes Discipline
With sexual assault allegations, a mandatory investigation for sexual harassment, pursuant to Title IX may need to proceed first. This can delay the discipline matter for quite a long time. Schools must investigate sexual harassment allegations if they become aware of them, pursuant to Title IX.
This does not, however, mean that the accused student will be allowed to remain attending their school. More likely they will be removed on an emergency basis while the Title IX and other discipline proceed.
Sexual Assault Charges Can Still Be Fought
Even with such a heinous allegation, parents may still advocate for the student, and poke holes in the school’s case. They can bring in witnesses, evidence and character evidence to try to defeat an expulsion. It is possible to negotiate a better outcome with the school, even pre-hearing, which could potentially avoid a calendar-year expulsion.
Parents should use their best diplomacy skills to pursue the least damaging outcome for the student.
Michelle Ball, student lawyer, defends students facing expulsion for sexual assault charges. She has worked as an attorney for students since 1995 in Sacramento and can assist statewide in Rancho Santa Fe, Rocklin, Natomas, Berkeley, Fresno and all cities in California.
