June 9, 2014

IT’S ANNOYINGLY UN-LINKABLE, but this emailed press release from George Washington University Law Prof. John Banzhaf summarizes the state of the campus sexual assault litigation crisis:

WASHINGTON, D.C. (June 9, 2014): Colleges being asked by U.S. Senator Claire McCaskil how they deal with allegations of rape and sexual assault are being advised by attorneys to “lawyer up,” while more male students found guilty of rape or sexual assault by their universities are bringing law suits – almost a dozen of which have already been successful – charging that the institutions badly “screwed up” both the investigations and the campus hearings, notes public interest law professor John Banzhaf.

In a slide show of legal advice prepared by lawyers for member universities of the American Council on Education [ACE] which received the inquiries, universities were warned about responding to the survey about rape and sexual assault because it could lead to “reputational harm,” “additional investigations” and “litigation,” and also cause “public relations risks.”

Lawyers reminded the universities, as they do large corporations accused of wrongdoing, that a congressional request for information “is not a subpoena”; that they can often duck by looking for an “opportunity to recast the questions”; and should be mindful of “what will play well on TV.”

ACE originally even refused McCaskil’s request for copies of slides used in a legal slide show to warn representatives of universities how to make their answers “bulletproof,” and provided the slides only once it became clear that copies had surfaced and were about to be published.

Reportedly, ACE is still refusing to tell the senator which institutions attended the “lawyer up” slide show. Meanwhile, colleges are facing a possibly more serious challenge as many male students found guilty of rape or sexual assault by their institutions are taking them to court and winning:

BROWN I – she didn’t remember the event, he said the sex was consensual, but was found guilty; was reported on TV as case of “When Yes Means No”; case settled by university

BROWN II – student charged the school interfered with his efforts to clear his name because of pressure from accuser’s father, an influential alum and a major donor; lawsuit settled by university

DENISON – accused passed lie detector test, was found guilty anyway by university, sued on ten different legal grounds including violation of rights; case settled by university

DUKE I – famous case involving lacrosse players, law suit charged conspiracy to fame players, and was settled by the university for an undisclosed amount

DUKE II – judge very recently prohibited university from expelling a student convicted of rape, because of alleged pressure on the campus tribunal to get tough on rapists

GEORGE WASHINGTON – was forced to settle a case where a former student sued the school for allegedly unfairly convicting him of sexual assault

HOLY CROSS – school policy held male responsible if both parties were drunk; university’s “responsible” finding was overturned; he was returned to school with no adverse mark on transcript

OCCIDENTAL – order of stay granted by the court when the student complained about improper procedures and definitions used in the campus proceeding which convicted him

SAINT JOSEPH – federal judge upheld lawsuit brought by male student against university, a university employee, and even the female complainant, under several novel legal theories

UNIVERSITY OF THE SOUTH – jury ruled university was negligent in a case that found a student guilty of sexual assault, saying that it did not follow its own published procedures

XAVIER – judge upheld a law suit, based upon many different legal theories, by a male student against his university which had earlier found him guilty of rape; university then settled

Also, late last week, in a case with some striking parallels, a military appeals court overturned a Marine’s rape and sexual assault convictions because of the unfairness of pressure to convict from higher ups; an allegation common to several students’ complaints

Meanwhile, law suits filed by students convicted by their universities of rape and/or sexual assault are pending against Bucknell, Cincinnati, Columbia, Delaware State, Depauw, Drew, Kenyon, U of Michigan, Philadelphia U, Swarthmore, Vassar, Williams, and perhaps others.

More such legal challenges are likely to be brought as pressure from the President, several federal agencies, women’s rights organizations, and individual women and groups on campus result in more findings of guilt where they may not be warranted by the facts and/or because the procedures used did not protect the accused student’s rights, says Banzhaf.

This may be especially true as the federal government pressures schools to convict, not where the evidence establishes proof beyond a reasonable doubt (the usual standard in rape cases) or even by clear and convincing evidence, but rather where the conclusion is based upon a mere preponderance of evidence.

This means that, in many “he said, she said” cases where there is no other corroborating evidence and the two students’ stories conflict, the campus tribunal just has to find her story a little bit more convincing than his to expel the male student and scar him for life, says Banzhaf, who has brought more than 100 successful legal proceedings charging sex discrimination against women.

Finding sexual assault by a mere preponderance of evidence may be appropriate where the consequence is a campus-wide restraining order, or a mandated move to another dorm or class to avoid facing the female complainant, but some higher standard may be required by law when the penalty, as in the Duke case, is expulsion plus loss of a diploma which he earned and is needed for his new job, says Banzhaf.

One major problem confronting prosecutions for date rape is that among the 50 states and the District of Columbia, only 17 explicitly prohibit rape involving penetration without consent. For example, in North Carolina, the home of Duke, a man is not guilty of rape when he simply sexually penetrates a female without her consent, providing that no force is used or threatened.

More specifically, in North Carolina, a male is guilty of first degree rape only if the intercourse is inflicted by “force and against the will of the other person,” whereas to constitute second degree rape, the defendant must have vaginal intercourse with someone who is “physically helpless.”

But North Carolina’s narrow definition of “physically helpless” – unconscious or unable to resist or communicate – may not include the all-too-familiar situation of a female university student whose ability to meaningfully consent may have been significantly impaired by alcohol, although she can still move, speak, and sometimes even exchange email or text messages, says Banzhaf.

Since so many date rape complaints allege that sex occurred without the female student’s consent, but without the use of force or the threat of force, prosecutions may not be successful, or are likely to be overturned on appeal, even if the victim’s testimony of the events which occurred is believed, says Banzhaf, who is working on new procedures to improve date rape proceedings.

As I’ve said before, if I were a plaintiff’s lawyer in a college town, I’d be running ads saying “Falsely accused of sexual assault on campus? Sue the b*st*rds!”

UPDATE: From the comments: “It is interesting that the list of colleges are mostly private, very expensive schools.” Yeah. Why would anyone pay top dollar to an institution that shows such disregard to its six-figure customers. The male ones, anyway.

Also: “Wow. Put together like that, it is a stunning list of misconduct by universities.” Yes, yes it is.

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