By Collin Blinkley, Mike Wagner, Jill Riepenhoff, & Sara Gregory at The Columbus Dispatch
The chants of “no means no” echoed through Duke University’s storied basketball arena when Maryland basketball player Dezmine Wells stepped to the foul line.
The taunts by opposing fans were aimed at the man who had been branded a rapist the previous year after Xavier University expelled him for allegedly sexually assaulting a female student.
But the case against the prominent athlete fell apart. Local investigators didn’t believe the accuser’s story. A grand jury chose not to indict him on a criminal charge. And a local prosecutor known for being tough on criminals has called the college’s rush to judgment and disciplinary process “a joke.”
None of that could stop the taunts that followed Wells to his new school.
“I don’t think a person can ever truly recover from that experience,” said Peter Ginsberg, Wells’ New York-based attorney. “He was raised by a single mother and has sisters that he has an extraordinary relationship with. He felt devastated that these accusations were even made.”
When campus judicial systems take on cases involving violence — and there are hundreds each year — the odds can work against both victims and the accused.
Guilty or not, students typically face complex bureaucracies that make it difficult to defend themselves and respond to serious allegations.
Student disciplinary boards or individual administrators presiding over cases can choose which evidence to review and whose testimony they will hear.
Schools limit how much detail students can see about the accusations against them. They limit the type of evidence students can submit in their defense. Some allow witnesses, some allow anonymous witnesses and others allow no witnesses. And until recently, many could and did ban lawyers from campus hearings, even though the judicial board findings can be used in criminal court.
Those who work in the campus judicial system say that, because the private proceedings aren’t bound by the laws and rules of criminal courts, they function differently and hold different standards. They point out that, legally, schools are allowed to enforce their own rules.
But colleges also acknowledge that this work puts them in a precarious spot.
“College campuses are now being asked to serve as defense attorney, prosecutor, judge, jury and court of appeals all in one,” said Mary Bridget Reilly, a spokeswoman for the University of Cincinnati. “We care about all our students, but we have situations where our students are in conflict.”
Unlike legal courts, where a defendant must be found guilty “beyond a reasonable doubt,” colleges have widely adopted a lower bar known as the “preponderance of evidence” standard.
To determine guilt, campus judicial boards must agree only that the evidence leans farther toward guilt –– by any degree –– than toward innocence.
“It’s 50 percent and a feather. It’s pretty darn close to guilty until proven innocent,” said Isaac Smith, an Ohio University student and associate director of Students Defending Students, a campus group that defends students in hearings and throughout the judicial process at the Athens campus.
Critics say it’s too easy for innocent students to be found responsible for serious offenses, especially as schools face increasing pressure to take a hard stance against sexual violence.
Shortly after learning of The Dispatch and Student Press Law Center’s investigation into campus judicial boards, Ohio Attorney General Mike DeWine ordered a sweeping examination of how Ohio’s public colleges handle allegations of violent offenses.
“I hear horror stories, not just since I’ve become attorney general, but before that from people on both sides,” said DeWine, who is Ohio’s chief law-enforcement officer and whose office is the legal representative for Ohio’s public universities.
“People who are accused, parents of someone who is accused, say it was not due process: ‘We didn’t have the right to appear, we didn’t have the right to put on evidence, we didn’t have the right to testify.’”
Historically lax punishment for rapists at some colleges has spurred new rules from the federal government in recent years. Now, schools are required to investigate and resolve any allegation of sexual assault quickly and decisively. Failure by colleges to do that can lead to fines, federal investigations that can last years and a black eye to their public reputations.
“They wanna say, ‘We’re tough; we dealt with this,’” said Joshua Engel, a Cincinnati lawyer who represents students in lawsuits they file against colleges over judicial decisions. “Essentially, they want to put heads out on pikes in front of the school to show that they’re tough.”
Increasingly, both victims and accused students have taken their complaints about the fairness of the process to federal courts and the U.S. Department of Education. The number of federal lawsuits concerning Title IX, a law that protects against sex-based discrimination, have more than doubled from 2012 to 2014. The Education Department has 88 colleges under investigation.
In one case at Ohio University, a student who was a judicial board member felt that the process was so unfair that she decided in the middle of a student’s trial to join Students Defending Students.
“I went right to their office and I was like, ‘Can I please apply and become a representative, because I don’t think I can sit back and watch this happen,” said Molly Nocheck, who now works for the Foundation for Individual Rights in Education, a civil-liberties group in Philadelphia.
Rush to judgment
The truth-or-dare game in Dezmine Wells’ dorm room between several male and female Xavier students was sexual in nature. One woman started kissing the basketball star and gave him a lap dance, and that led to their going back to her room to have sex.
Five days later, in July 2012, university officials told Wells that the woman had accused him of sexual assault.
Five weeks later, the university’s disciplinary board found Wells responsible for sexual assault and kicked him out of school.
Legal experts who represent students who say they were falsely accused say that the Wells case represents all that is wrong with having campus judicial systems judge offenses involving violence. According to the lawsuit Wells filed against Xavier, the disciplinary board failed on many levels:
• The burden of proof was placed on Wells to prove that sex with the woman was consensual.
• The faculty and student members of the board were woefully untrained to evaluate a sexual-assault case or understand the significance of a rape kit.
• A college administrator did not tell the board that a medical examination showed no signs of sexual assault.
• The woman was allowed to call character witnesses but Wells was not.
University administrators also ignored direct warnings from Hamilton County Prosecutor Joseph Deters, who has a reputation for being tough on crime, that the sexual-assault accusation had no credibility. Deters’ office investigated the case and didn’t believe the woman’s complaint. They presented the case to a grand jury and the jury did not indict.
“I was shocked when I read the transcript from Dez’s case,” Deters said. “No one was looking out for Dez during that process. In that case, he was the one that needed protecting, but his due rights were more than violated. It broke my heart to hear them chanting ‘no means no’ at him in the Duke game. That should have never happened.”
Wells’ lawsuit also said that the woman recanted, although The Dispatch was unable to independently confirm that.
Xavier officials declined to comment on the case.
A lawsuit filed by Wells was settled with Xavier this past spring.
Wells, his family and Ginsberg, his attorney, are all prevented from commenting on the case because of a confidentiality agreement.
A spokesman for the University of Maryland basketball team said Wells made a smooth transition after transferring from Xavier.
“Dez is focused on having a great (senior) season,” said Zack Bolno, an associate athletic director at Maryland.
Ginsberg would comment only in general about the need for reforms in the campus judicial-review process.
“Universities and colleges are entrusting life-long decisions on people who are essentially unqualified to make these determinations,” Ginsberg said. “These situations are extremely important to both the accused and accusers.”
At a University of Cincinnati hearing to determine whether he sexually assaulted two women, Ethan Peloe clutched a thick binder of evidence that he said proved his innocence.
The hearing panel wouldn’t take it.
In a lawsuit that he filed against the university this year, Peloe says that the panel refused to let him submit virtually any evidence in his defense. Not the police records that essentially cleared him criminally. Not the surveillance footage showing the two women on the night he allegedly assaulted them. Not the text messages police obtained from the women from that night.
That was all “irrelevant,” a school administrator said, according to the lawsuit.
Without considering that evidence, the panel found Peloe responsible for assaulting one of the women. He walked out before they could decide his case involving the second woman.
“I’ve never seen anything like it. It was an Alice in Wonderland-type moment where they clearly decided he was guilty and they would have a trial later,” said Engel, the Cincinnati attorney who is representing Peloe.
University officials declined to discuss the case, but in a court motion to dismiss the lawsuit, the school said Peloe still can appeal the initial findings.
According to Peloe’s account, he met the two women at a party, returned to their home with them, and they all agreed to have sex. One of the women, though, reported that she was awakened to Peloe having sex with her. The other said Peloe tried to have sex with her but she fled.
Peloe, 21, of Loveland, said the university would give him only a heavily redacted version of the investigative files from the school police, and that they refused to give him results of rape-kit analyses.
Other students from Cincinnati have come forward with similar stories, Engel said. The problem, he said, is that colleges lack the experience and training to investigate serious offenses, especially amid heightened pressure to meet the demands of the federal government.
“All the incentives for the school line up to try to find kids responsible and try to kick them out of school,” said Engel, who fields several calls a week from across the country seeking similar help. “Schools do not get any sort of credit for holding a fair and impartial trial that exonerates a student.”
Like Engel, attorney Andrew Miltenberg frequently receives calls from students who have been accused — so many in the past six months that the New York City-based attorney said he can’t even keep count.
Miltenberg and one of his colleagues, Kimberly Lau, are representing about a dozen students. They’ve filed lawsuits against six colleges, including Vassar College in New York and, earlier this month, the University of Colorado at Boulder. A seventh is planned.
There are similarities to all of the cases he has been asked about. Alcohol is typically a factor. And nearly all of the calls have come from students who were accused weeks or months after incidents that started out consensually, he said. Until the allegation, the men believed it had ended consensually.
But the similarities end there. Miltenberg said there’s little consistency in the investigatory process from college to college, and sometimes even in how similar cases are handled within the same school. Miltenberg said he knows of students at one college who faced the same allegations but saw their cases handled differently.
“There’s no order to the investigation,” he said. “There seems to be a randomness to it.”
The secretive nature of disciplinary systems, which do their business in private and are required to release only a little information in some cases, lets colleges get away with inequitable policies and procedures, Lau said. More transparency would make the system fair for all, she said.
“It’s akin to when politicians are required to be transparent about their finances,” Lau said. “There’s a reason for that, so that the public eye is on them and we know that no funny business is going on.”
Pressure to respond
Historically underreported, sexual assault is being reported to colleges now more than ever, largely because victims are sharing their stories, inspiring others to report assaults.
Student activists have found an ally in the U.S. Department of Education, which in 2011 issued guidance effectively ordering colleges to take the issue of sexual violence more seriously.
“It made it very real for a lot of campuses,” said Laura Bennett, the president-elect of the Association of Student Conduct Administration, in College Station, Texas. “It has shaken the world of higher ed.”
What the Education Department told colleges is that they must investigate allegations of sexual violence and sexual harassment, and that those investigations must be “prompt, thorough and impartial.” Despite repeated requests for comment, Education Department officials declined an interview to answer questions about its policies and procedures for this series.
Federal rules effective next July will allow students to bring lawyers, parents or other representatives to disciplinary hearings and meetings.
Some schools allowed this previously, but others did not. Colleges still will be able to set limits to the support person’s involvement, so in most cases they’ll be allowed to observe only.
Also next year, colleges will have to disclose in their annual crime reports the potential punishments for students who commit sexual assault, dating violence, domestic violence or stalking. Some college representatives said that forcing schools to lay out potential sanctions ahead of time would limit their ability to be “creative” in individual cases.
Students fighting back
Joshua Strange kept quiet about his expulsion from Auburn University in Alabama for almost two years. Now, he’s one of the most outspoken advocates for students accused of sexual assault.
“It’s really hard to talk about with people,” said Strange, 24, of Spartanburg, S.C. “But I’m trying to pave the way for the other side to speak out. There are two sides to every story. So far, people have only listened to the one side.”
A woman whom Strange dated on and off throughout the summer of 2011 accused him of sexual and physical assault that fall. Neither allegation is true, Strange said.
Of the sexual-assault allegation, Strange said the sex on the June night in question was consensual. As for the physical assault, Strange said he didn’t even see the woman on the night she told police that he punched her in a parking lot. He was cleared of any criminal charges. A grand jury decided not to indict in the sexual-assault case, and prosecutors dropped charges in the physical-assault case when the woman did not show up for a hearing.
Strange said the university repeatedly let his accuser submit evidence and responses after deadlines had passed, and he wasn’t allowed to present witnesses at the hearing. In Strange’s case, the disciplinary and criminal procedures ran concurrently. Fearful that something he said in the disciplinary hearing might be used against him in the criminal proceedings, Strange said he couldn’t properly defend his innocence.
He was expelled at the end of the fall 2011 semester. An appeal was denied in February 2012. Auburn said it takes federal requirements seriously but didn’t speak to Strange’s case.
Today, Strange speaks out for other students accused of sexual assault through the group his mom, Allison Black Strange, helped found, Families Advocating for Campus Equality. Strange said he’s often in the minority in conversations about campus sexual assault. During a White House conference call to discuss the issue, Strange said he was met with uncomfortable silence after he told his story.
Another FACE member said she knows that people are suspicious when she speaks up in her son’s defense. Caleb Warner was never arrested or charged, and police ended up charging his accuser with making a false police report. But he still was expelled by the University of North Dakota, and it’s the expulsion that people pay attention to, said his mom, Sherry Warner-Seefield, of Fargo, N.D.
“It’s pretty hard to say, ‘Well, you know, some people are falsely accused,’ because immediately, you are accused of being a rape apologist,” she said. “It is assumed that your son is a rapist and you’re lying for him.”
At Ohio University, down the hall from the conduct office, a student group keeps its office door open to any student who is tangled in trouble with the school.
That organization, Students Defending Students, formed almost 40 years ago to help students understand their options when they’re accused of breaking school rules. Today, students still volunteer to learn the intricacies of the disciplinary process and advise their peers.
“If we’re comparing this to the court process, we’re the public defender’s office,” said Isaac Smith, 23, the associate director of the group. “I have handled everything from having incense in your room all the way up to rape and attempted murder. It runs the gamut.”
The group is as relevant as ever: Last year, it had to bring in extra workers to handle a total of 260 cases.
For Smith and others, the group is an avenue to push for fairness. They say the disciplinary process leans against students who are accused of offenses, with no rules forbidding evidence that would be inadmissible in criminal court. In one case, Smith said, a student was found responsible for having drugs even after police, recognizing their search had been illegal, dropped the case.
In the courts, the Constitution protects the accused and gives them opportunities for defense and appeal. The campus judicial system deals with some of the same accusations but does not offer the same rights to due process.