By Teresa Watanabe at Los Angeles Times
Peter Yu, Drew Sterrett and Lewis McLeod were headed toward bright futures at prestigious colleges and universities when each got involved in one-night sexual encounters.
All three young men claimed the encounters were consensual — but the women asserted otherwise. In each case, campus officials found the men responsible for sexual assault and expelled or suspended them.
But all three are pushing back, suing the schools on charges that their rights to a fair hearing were violated.
As universities and colleges launch intensified efforts against sexual misconduct, more cases are shifting from campuses to courtrooms.
The three young men are suing Vassar College, the University of Michigan and Duke University, respectively; students who were suspended or expelled for sexual assault have also filed actions against Occidental College, Columbia University, Xavier University, Swarthmore College, Delaware State University and a host of other campuses.
Most are arguing that the college hearing process is unfair. In a new twist, some young men also are asserting that the college discipline process is skewed against them because of their gender, violating the 1972 Title IX law, which bans sex discrimination by schools receiving federal funds.
The lawsuits reflect growing concern about the legal rights of the accused, especially as complaints of sexual misconduct increase.
Some critics argue that students should have the right to an attorney and to directly question their accusers — protections not granted on all campuses.
They also expressed concerns about the federal government’s 2011 directive to apply a lower burden of proof — “preponderance of evidence” — in these sexual misconduct hearings, instead of the higher standard of “clear and convincing evidence” that some campuses had been using.
That directive by the Department of Education’s Office of Civil Rights also gave both parties the right to appeal a decision, which critics argue amounts to “double jeopardy” for the accused student who was cleared once.
“I think there has been a significant amount of pressure on universities to treat all of those accused of sexual misconduct with a presumption of guilt,” said Robert Shibley, senior vice president of the Philadelphia-based Foundation for Individual Rights in Education, a leading voice for free speech and due process rights at colleges and universities.
But many activists who fought hard for stronger federal action against campus sexual assault are dismayed by contentions that universities are improperly punishing innocent students. Thanks to activist pressure, the federal government has launched more investigations, fines and directives since 2011 than ever before.
Annie Clark, a former University of North Carolina student who has helped more than a dozen groups file federal complaints on sexual misconduct, said campus hearing processes are still riddled with problems for both sides. But overall, she said, accusers face more problems making their claims than do the accused.
Last week, for instance, hundreds of students rallied at Stanford University to protest what they regard as weak sanctions against sexual assailants.
The rally organizer, Leah Francis, is protesting Stanford’s decision not to expel a student that a university disciplinary panel found responsible for forcible sexual assault against her. Instead the university imposed a five-quarter suspension, community service and sexual assault education.
Erin Buzuvis, a law professor at Western New England University who writes the Title IX Blog, said claims by men of sex discrimination under Title IX would be difficult to prove. Among other things, it would require men to show that women accused of sexual assault received more lenient treatment — and there are few such cases, if any, she said.
Still, Andrew Miltenberg, a New York attorney who represents plaintiffs suing Vassar and Drew University, said interest in filing such cases has surged in the last year; he is now receiving three to four calls a week from all over the country.
“The common thread is really egregious due process violations,” he said.
In the Vassar case, a female student filed a charge of sexual assault against Miltenberg’s client, Yu, a year after the encounter occurred. In court filings, Yu claims the encounter was consensual and that Vassar ignored evidence, such as the female student’s friendly Facebook messages saying she had “a wonderful time” and was “really sorry” she led him on.
In addition, Yu contends in the court filing that the university refused his request to have a student on the hearing panel, which was made up of three colleagues of the victim’s father, a Vassar professor.
Sterrett filed his lawsuit against the University of Michigan in April, alleging “significant due process violations,” including failure to provide notice of charges or the names of witnesses against him. In media reports, the university has denied allegations of negligence.
In his case against Duke University, McLeod recently won a court ruling blocking his expulsion while his lawsuit proceeds. A North Carolina judge found that McLeod had demonstrated a “likelihood of success” in his claims that Duke violated his rights in the disciplinary hearing process. McLeod asserted in the lawsuit that the sex was consensual and that he immediately stopped when she began to cry.
Some universities are settling lawsuits. In April, basketball standout Dezmine Wells settled his lawsuit against Xavier University, which expelled him after finding him responsible for sexual assault.
Wells asserted in the lawsuit that he had consensual sex with a woman after she took off most of her clothes, kissed him and gave him a lap dance during a game of “Truth or Dare.” She later recanted her charges, he claimed in the lawsuit.
Wells sued for sex discrimination and negligence, among other things. He asserted that Xavier used inadequately trained investigators and advisors and improperly placed the burden of proof on him to demonstrate his innocence. Both sides have declined to comment on the settlement.
In the Occidental case, college officials expelled an 18-year-old freshman for sexual assault last year after ruling that his classmate, then 17, was too drunk to consent to sex.
The young man is now suing Occidental in Los Angeles civil court to reverse its decision, arguing that the college failed to give him a fair hearing, follow its own sexual misconduct policy and provide sufficient evidence for the finding.
He has identified himself as John Doe in the lawsuit, claiming that using his real name would invade his privacy. Reached by The Times, he agreed to an interview on condition of anonymity to avoid backlash.
He said he had learned in campus presentations on sexual misconduct that those who are too drunk cannot give consent for sex. But he said he believed his classmate was lucid enough to consent.
The college’s investigative report, performed by an outside firm, said both parties agreed on the following facts: Both had been drinking, she went to his room, took off her shirt while dancing, made out with him and returned to his room later for sex, asking if he had a condom. When friends stopped by the room to ask if she was OK, she told them yes.
The crux of the case was whether she was too drunk to understand what she was doing — and whether he knew or should have known of her impaired condition.
The Los Angeles County district attorney’s office concluded that witnesses agreed that both parties were drunk but “willing participants exercising bad judgment,” according to a report by its investigating deputy. The office declined to file rape charges, citing insufficient evidence. The college hired an outside attorney to examine the investigative report and offer a conclusion.
The attorney, Marilou F. Mirkovich, found that the young man did not know that his classmate was too drunk to consent because he, too, was inebriated. But, citing the college’s policy that does not allow alcohol or drug consumption to excuse sexual misconduct, Mirkovich found that he should have known and was responsible for the assault.
A sober person would have seen that the classmate had been swigging vodka, slurring her words, vomiting and walking unsteadily, causing her worried friends to remove her from his room, she concluded.
Occidental officials affirmed the conclusion and rejected the young man’s appeal. In his lawsuit he argued that the college denied him the right to an attorney, failed to allow all of his questions to witnesses, refused his request for a three-person hearing panel and ignored critical evidence, among other things.
“Occidental is turning drunken sex into rape,” he said. “In an effort to curb the epidemic of sexual assault on campus, the pendulum is swinging too far the other way.”
In a court filing, Occidental called the young man’s assertions “meritless” and said its sexual misconduct policy was neutral and fair. The case is expected to advance to a court hearing later this year.
The woman’s Pasadena attorney, Lauren Teukolsky, said the evidence was overwhelming that her client was incapacitated. Teukolsky decried the young man’s implications that the woman was lying as “offensive and outrageous.”
The one-night encounter and its aftermath have devastated the lives of both parties.
The female student has dropped out of school for now, is in therapy and is suffering from post-traumatic stress disorder, her attorney said.
The male student said he had been physically attacked and called a rapist and is still struggling to restart his college career. One out-of-state school that accepted him earlier this year abruptly rescinded its acceptance on the day he arrived after receiving an anonymous phone call about his case, he said.
“It’s been a soul-crushing experience,” he said.
On one point, all parties seem to agree: Campuses should improve training to help clarify when a person is too drunk or high to give consent. Brett Sokolow, executive director of the Assn. of Title IX Administrators, said a checklist of signs could help, such as stumbling, slurred words and vomiting.
Campuses are preparing sexual assault prevention training for this fall, as required by new federal policies. In a significant shift, federal regulations in the works will give students access to attorneys at all campuses that receive federal funds, although administrators may limit their role.
At present, campuses vary in policies on attorneys — the University of California allows them but Occidental does not.
Ruth Jones, Occidental’s Title IX coordinator, said the college has barred attorneys to prevent the discipline process from being too “adversarial” but would change the policy in accord with final federal regulations.