With Campus Rape, The Rules Are Different

There's no doubt this issue is trickier than it seems.

The subject of how colleges and universities deal with rape allegations was back in the news last week not because of some high-profile case or new allegations, but because U.S. Department of Education Secretary Betsy DeVos met with both people accused of rape and those who accused others (as well as representatives from various interest groups and universities) to discuss how these situations are handled on campus.

It created brouhaha because DeVos was seen as criticizing efforts President Obama put in place in 2011 through a so-called “Dear Colleague Letter” from the DOE to scrutinize how universities applied Title IX guarantees in the context of rape and sexual assault allegations.

Title IX is a far-sweeping, anti-discrimination statute codified in 1972 that guarantees that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

It has been used to cover complaints of sexual assault, and while all universities have their own individualized protocols, Title IX requires that when such complaints are made, schools must conduct an inquiry and that the inquiry must in all cases be prompt, thorough, and impartial.  School personnel must also determine, consistent with state and local law, whether to alert police.  Sometimes they do, sometimes they don’t.  Doing so takes the proceeding out of the hands of a civil venue (the school alone), and into the maelstrom of criminal courts where the accused will be arrested and the victim potentially forced to testify.  It could take years to resolve and instead of being an in-house, more private hearing, it will be held in open court for the public to see.  The consequence for the accused, if found guilty, is much more severe. Instead of being merely expelled, he faces a long sentence in jail.

There are so many interests at play when such an allegation is made — the reputation of the school, the credibility of the victim, the automatic taint to the accused — that it’s difficult to balance the rights of the accusers against the harm to the accused (should the accusation not be true or be exaggerated).

If handled internally, the standard of proof is lower than in criminal court — preponderance of the evidence.  If the committee reviewing evidence finds that the complainant has shown by greater than 50% (preponderance of the evidence) that the offense occurred, some sanction will be imposed.  If that burden is not met, the accused should be vindicated, except it’s not quite the same as being found not guilty after trial.

The accusation alone carries a huge stigma — humiliation, castigation, and exposure on campus (sometimes in the form of posters and flyers) as a rapist.

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Recent Columbia University graduate Emma Sulkowicz carried a mattress to graduation to protest the handling of her rape accusation against fellow student Paul Nungesser.  The school found the evidence insufficient to believe that Nungesser sexually assaulted Sulkowicz. He admitted having sex with her, but said it had been consensual.  However, even though he was found not responsible, he was so vilified on campus (Sulkowicz carried the mattress for a year on campus as her senior arts thesis) that ultimately the school agreed to pay Nungesser damages for harassment and defamation.  The university stated: “Columbia recognizes that after the conclusion of the investigation, Paul’s remaining time at Columbia became very difficult for him and not what Columbia would want any of its students to experience.”  Nungesser has since returned to his home country, Germany.

Balancing this stuff is a tightrope act.  There’s no doubt many women (for the most part) are sexually assaulted on campuses around the country.  However, it’s also true that many men are wrongfully accused of rape.  A mere allegation to police will get the accused arrested.  The allegation needs no corroboration, no prompt outcry, no injuries, and no witnesses.  Once someone calls 911 to complain of domestic abuse or sexual assault, police arrest first and sort through the evidence later.

Most people are believed a priori. After all, why would anyone make such a claim if it didn’t actually happen?  Any such allegation automatically brings with it extensive scrutiny and embarrassment.  However, in my years doing defense work, I’ve seen complainants make up lots of charges.  Whether it’s due to jealously, anger, regret, or just plain spite — it happens.

Although the complainant can always go to the police on her own, universities generally get the first stab at these student-on-student rape cases.  Their process is less adversarial, more private, and more measured.   Should it be a close call — a he said/she said case where co-eds agreed to have sex but things went wrong — things can be worked out before the parties cede control to the impersonal workings of criminal court.  (Once the state takes the case, even the complainant loses the right to back out.)

Having not been in college myself for many years, I asked my son and his friend, going into their sophomore year, what the policy is at their university.  They told me that during freshman year it was drummed into their heads how not to behave with a woman (or partner); how “yes” only means “yes” for that moment but could change quickly to “no,” which the male then has to respect.  They both thought that no smart guy (no matter how drunk or high) should find himself in that situation in the first place and that if a women claimed it happened, it probably did.

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But, having been around a bit longer than them, there’s no doubt this issue is trickier than it seems.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.